Constructive dismissal is, in effect, a resignation treated as a dismissal. The employee terminates the employment contract in response to an employer’s alleged breach and the Employment Tribunal then assesses the employer’s breach to decide whether it is sufficiently serious to amount to a dismissal or whether it should be treated as a resignation.
In a recent case, an IT manager claimed constructive dismissal some five years after he had been hired by his employer. He argued that:
- the employer refused to allow him long periods of holiday in breach of legislation relating to annual leave;
- the employer failed to inform him of his individual right to training each year; and
- the employer did not comply with certain obligations arising under a pre-employment medical examination by the Occupational Health Practitioner.
The French Supreme Court decided that the alleged breaches were too old and it could not be said that they made it impossible for the employee to perform the employment contract. Consequently, the constructive dismissal claim failed and the termination had to be treated as a resignation.
Recent case law continues to limit the scope of constructive dismissal claims. In another more recent decision of the French Supreme Court, it was held that an amendment of the employment contract would not amount to a dismissal where the amendment was not important. (Cass. Soc., March 26 2014, n° 12-23.634)