Constructive dismissal
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In employment law, constructive dismissal is where an employee resigns due to their employer's behaviour. The employee must prove that the behaviour was unfair — that the employer's actions amounted to a fundamental breach of contract or the law.
The employee may resign over a single serious incident or over a pattern of incidents. Generally, the employee must have resigned soon after the incident.
The notion of constructive dismissal comes from the concept that (as it is phrased in United Kingdom law) "An employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee." (Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84, EAT.)
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Examples of constructive dismissal
- Putting managers into excessively difficult work situations without supporting their decisions.
- Harassment or humiliation, particularly in front of less senior staff.
- Victimisation of the staff member.
- Unilaterally changing the employee’s job content or terms or employment.
- Significantly changing the employee’s job location at short notice.
- Falsely accusing an employee of misconduct or of not being capable of carrying out their job.
- Undue demotion or disciplinary procedures.
Constructive dismissal in law
UK law
In United Kingdom law, constructive dismissal is defined by the Employment Rights Act 1996 [1] (http://www.hmso.gov.uk/acts/acts1996/1996018.htm), section 95(c):
- the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct.
The Department of Trade and Industry states [2] (http://www.dti.gov.uk/er/individual/fair-pl714f.htm):
- A tribunal may rule that an employee who resigns because of conduct by his or her employer has been 'constructively dismissed'. For a tribunal to rule in this way the employer's action has to be such that it can be regarded as a significant breach of the employment contract indicating that he or she intends no longer to be bound by one or more terms of the contract: an example of this might be where the employer arbitrarily demotes an employee to a lower rank or poorer paid position. The contract is what has been agreed between the parties, whether orally or in writing, or a combination of both, together with what must necessarily be implied to make the contract workable.
South African law
In South African law, constructive dismissal is covered in section 186 of the Labour Relations Act of 1995. Section 186(e) states:
- A dismissal means that an employee terminated a contract of employment with or without notice because the employer has made continued employment intolerable for the employee.