Constructive dismissal....what is it..

[pineappleeyes]

I am having quite a difficult time at the moment at work, both with my manager & due to staff leaving. It is basically making it difficult to be there & the staffing issues will make it impossible. A colleague mentioned constructive dismissal. I have looked into it but can only see that it is if the employer has breached our contract. What is an example of a breach of contract? I can't go into too much detail on here as it will out me so if anyone is an expert i would appreciate a PM.

[AnchorDownDeepBreath]

To be honest, it doesn't sound like staff leaving would bring a case for constructive dismissal.

It's when a term is breached, like you said. So for example, if your employer didn't pay your salary, they've breached the term that says they will, and if you resigned in response, you could then sue them for constructive dismissal.

It has to be a fundamental breach. It can be an implied term, most commonly trust, but it still has to be pretty fundamental - like publicly humiliating the employee, or falsely accusing them, etc.

To win, you have to prove that the breached term was fundamental enough that it left you with no choice but to resign.

It wouldn't go to court as constructive dismissal, though - it would be unfair or wrongful dismissal.

[pineappleeyes]

Thanks anchor. The staffing issue will leave it impossible for our team to function. I will be the last one standing. I can't say too much as I know a member of my team is on mn. It's just going to be horrendous. And morale is already at rock bottom hence why everyone is leaving. I really don't know who to talk to as they are the type of company who will let things go wrong & then deal with them after.

[OddBoots]

It is hard to be sure because of how little you can say but it does seem you may have cause to raise a grievance. Have a look at the ACAS page about it and see if you think that might be the right route for you.

[AnchorDownDeepBreath]

Ah okay, that might count, then. Have they got rid of the other staff or have they left?

As Odd says, a grievance might be a good idea.

[pineappleeyes]

They've left. Just me now. It's not manageable at all & they know this.
I don't have much faith in the grievance procedure but it could be a possibility.

[HermioneWeasley]

I wouldn't have said understaffing is likely to be constructive dismissal - if they are in breach of working time regs and forcing you to work without breaks etc it might be, but otherwise it's just a crap situation you want to leave and that's resignation.

[pineappleeyes]

There is a lot more to it but I will out myself if I say much more. Thanks for the replies.

[MummyBex1985]

The basic principles of a constructive dismissal claim require that:

1. You resign;
   
2. Without delay;
   
3. As a result of a fundamental breach of contract.
   
   A breach can be an express term, or an implied term (most commonly the implied term of mutual trust and confidence).
   
   It's brought as a constructive (unfair) dismissal claim in the employment tribunal.
   
   You should raise a grievance though - if you don't it could be fatal to the claim, and even if you did win your compensation would be reduced.

[daisychain01]

My understanding of Constructive Dismissal is where the company is deliberately making your working conditions so unbearable that it gives you no alternative but to resign. It is often done to force the individual to resign rather than pay expensive redundancy terms.

You would need to prove your employer is creating those unbearable conditions for that charge to stick. Perhaps the fact they are no replacing staff and leaving you to cope . single handedly could be CD but realistically why would they want to get rid of the last person on their team? Do you think they have it in for you personally?

[Friendlystories]

I have a relative who is a union official so has good knowledge of employment law OP. If you want to PM me with a bit more detail I can relay your questions and let you know what he says if that's any help?

[FelicityR313]

Dismissal is where you are dismissed/fired.
Constructive dismissal is where you are forced to resign i.e. you're left with no choice but to resign.

There is a time length that you need to be employed before you can be considered for constructive dismissal. Not sure whether it is 12 or 24 months?

It is a common cause of people resigning. If you go through the grievance procedure with the company that helps, but some cases mean that you're not well enough to or don't trust the procedure. There is a short statute of limitations on pursuing a case. Most cases are settled out of court. 90% of cases are not even taken to court.

[pineappleeyes]

I don't think they have it on for me personally. I think the dept manager is too busy with other higher level stuff. It's
Is going to be impossible for me to do my job properly. I have asked to meet the dept manager to discuss my concerns but I haven't had a response. The pressure and responsibility on me will be enormous bit no one seems to be bothered.

[mouldycheesefan]

Ok well you need to see the initiative. Be very clear in your concerns. Go to the dept manager and ask for a meeting. Document everything with who said what, when. Be clear in the outcome you are looking for 'we can't achieve the project without 2 more staff' or whatever. Make sure the meeting is a specific request for what you want to see happen rather than a moan. Don't just email the manager and wait for a reply, get in front of them.
Grievances take up a lot of time and energy. Try to resolve it at the informal stage.
Good luck

[daisychain01]

I agree with you wholeheartedly mouldy. Going through the process of grievance needs to be entered into with a clear goal of what you want to get out of it, otherwise it can suck the life out of you.

Far better to go in with positive intent, to resolve issues and challenges rather than with the view you want to show that employer is doing wrong or something outside employment law. Often it's a hiding to nothing for the employee.

If all you want is for them to recognise that you desperately need more resource on the team, that's an entirely different matter to a CD claim, because effectively what you want is continuity of the relationship. A CD claim would sour the relationship and may not actually be what you're aiming for.

[AbolishFlobots]

I have a relative who is a union official so has good knowledge of employment law OP. If you want to PM me with a bit more detail I can relay your questions and let you know what he says if that's any help?

A relative having knowledge doesn't necessarily mean they want to help a stranger on the Internet
If I had a pound for everytime I had a call or pm asking "can I pick your brain on a HR issue for me / my neighbour / my friend / my cat" I'd be loaded . In the nicest possible way fern, please consider what you're offering to people before offering it. The employment boards tend to attract HR / Union type mn'ers so normally plenty of people willing to help & support whet they can.

OP - sorry you're going through this. lots of good advice so far. I would agree that following a grievance procedure is probably your best course of action to determine if the issue(s) can be resolved between you and the company. Have you utilise ACAS and their advisory service? They can be hit and miss sometimes but normally good at advising on the law and how that applies in the context you describe to them.

[Friendlystories]

He's more than happy to help Abolish, I checked before I posted! He's close family not some distant rellie I hardly speak to and we help each other out, no need to worry