How to avoid mistakes with constructive dismissal

It is often the case that we are approached by employees who have a genuine grievance, in relation to the manner in which they have been treated during their employment, but are unsure as to the next steps to take. It may be that they consider the complaint so bad that they can no longer

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It is often the case that we are approached by employees who have a genuine grievance, in relation to the manner in which they have been treated during their employment, but are unsure as to the next steps to take. It may be that they consider the complaint so bad that they can no longer return to work, or it may be that they are already on sick leave because of the treatment.

The first thing that employees often want to know is whether they can claim constructive dismissal. This is not a decision that should be taken lightly. It involves the employee resigning and thereafter bringing a claim against their employer. The risk is that once the employee has resigned they waive all of their rights and protection; they may also sour irreparably their relationship with the Company. Unless they succeed with the employment claim they would have no further recourse.

Beware the danger of waiving the employers breach

That said, if they have a case which does give rise to a clear constructive dismissal claim, then they need to be aware that by continuing to work that they could be in danger of waiving that claim. The premise is that if an employer has breached their contract, then an employee needs to resign in response to that breach. If they do not, or delay unnecessarily, then they may be seen to waive the breach, and be prevented from relying on it at a later date.

There are a number of issues to consider and it is important that all parties take advice from the outset.

Employers – ensure you deal with grievances properly

From the employer’s perspective, if an employee raises a grievance which could give rise to a constructive dismissal claim, then they need to be aware of their rights and obligations straight away.

To start, they should follow any grievance procedure that is outlined, either in the employment contract or the staff handbook. If it is not included in either of those, then there is general procedure laid down by ACAS, and they should seek legal advice to ensure a fair procedure. Any grievance should be investigated objectively, and if the grievance relates to a particular manager, all effort should be made to ensure that an alternate staff member carries out the investigation and/or hearing.

Thereafter, there are various safeguards that a company can put in place to limit their exposure. Firstly they can ensure that the appropriate policies and procedures in place, including a full grievance and disciplinary procedure. Once an issue arises they must ensure that staff are aware of the appropriate policies and follow them.

Long term sickness absence – constructive dismissal ?

If an employee is signed off sick, then they will need to consider that when looking to arrange either an initial interview or a formal grievance hearing.

If an employee is placed on long term sick, either as a result of treatment at work, or as result of other medical issues, then employers need to ensure that they follow full procedures in that regard. That would normally involve obtaining an occupational health report which would outline what, if any, adjustments could be made to ensure that the employee can manage the situation and return to work. One of the key considerations will be to decide whether the employee is classed as disabled under the Equality Act 2010. If they are, then there are further obligations placed on the employer, which include making reasonable adjustments. These are all decisions that a company can only make if they have obtained appropriate guidance from medical experts.

It is always the case, that if an employee is on long term sick with no realistic prospect of returning to work, at some stage, the company would be entitled to consider a termination as a result. However, in order to reach that stage they must go through a proper process, having obtained objective medical evidence and reviewed the situation in accordance with any internal procedures and the Equality Act 2010.

For legal advice on employment dismissals get in contact.

Employment law

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