Constructive Dismissal – What is it?
Constructive dismissal is a term often used by employees and employers but is much misunderstood. What does it mean?
Claims of Constructive Dismissal occur when an employee leaves or resigns from their job and claims they were forced out of their job by their employer’s actions, and the term is they have been “constructively dismissed”.
To quote the legislation it occurs where the employee “is entitled to terminate their employment without notice by reason of the employer’s conduct”.
Very significantly, unlike when claiming unfair dismissal, an employee does not need 2 years’ service to claim constructive dismissal. In conclusion it’s well worth understanding what constructive dismissal is and how to avoid it!
To be successful, using the legal terminology the employee must show that the employer has breached a serious or fundamental term going to the root of the employment contract.
What does this mean? It is probably easier just to give examples. A major breach of contract could be any of the following:
- A significant cut in pay or working hours being imposed
- Significant changes in employment duties or employment status.
- Changes in location where there is no mobility clause in the contract.
- Failure to address a grievance or claim of bullying or harassment
The resignation might relate to something that has happened or something that is going to happen.
The main message for salon owners is to get professional advice, and follow your own procedures and processes:
Gemma Kelly has worked in HR for 15 years and has received the CIPD Level 7 Award in Employment Law, as well as a Masters Degree in Legal Practice, the Legal Practice Course qualifying as a Trainee Solicitor, and a Law Degree with Honours.
Gemma has excelled within several different departments and specialises in drafting employment documentation, carrying out employment status checks and support with disciplinary and grievance meetings. Gemma also deals with more complex employment issues such as redundancy, TUPE, settlement agreements, managing employee absenteeism and restrictive covenants to help prevent the poaching of staff or clients and to prevent employees from working in direct competition post-employment.
Areas where we can help you:
- Contracts of Employment/ Employee Handbooks
- Apprenticeship agreements/contracts Maternity
- Staff leaving/being poached
- Restrictive Covenants
- Training agreements
- Fire Risk Assessments
- Health & Safety policies
- Employment tribunals
- Employed/Self-Employed status?
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