Dr. Christine Calleja recently delivered a three-hour seminar, organised by Society Education, on the topic of 'Constructive Dismissal'. Whilst most employers are aware of the legal consequences they may face in cases of unlawful termination of employment, including sometimes rather hefty awards ordered by the Industrial Tribunal, the concept of 'constructive dismissal' will not be familiar to many.
In certain situations, which can be interpreted as amounting to a breach of contract, the employee may be entitled to resign and bring forward a claim for unfair dismissal, even though such employee was never directly dismissed. The extent to which the law tries to protect employees can be seen in the development of implied terms in the employment contract, which if breached, can give rise to a 'constructive dismissal'. Moreover, unlike in other areas of the law, sometimes these implied terms, such as the implied term to provide a safe system of work, will take precedence and override the express terms which have been agreed to by the parties in the employment contract.
In order for a claim of constructive dismissal to succeed, there are certain elements which need to be proven by the employee such as a serious breach of contract and the timeliness of the reaction to this breach by the employee. There can also potentially exist situations in which although the employee was constructively dismissed, the employer could then bring forward the defence that such dismissal was fair. The employer needs to be aware also of the behaviour of other members of the staff, in particular the management, especially in corporate-employer scenarios.