Constructive dismissal

A claim for constructive dismissal can be brought in circumstances where the employer's conduct has made staying with the employer untenable. The employer has not actually dismissed the executive but, given the circumstances, there is no option but to leave.

In order to bring a claim of constructive dismissal there must be a fundamental breach of contract by the employer. The resignation must then be made directly in response to this action of the employer.

Continuing in the role in order to serve notice is therefore likely to be inappropriate. In order to rely on any breach of contract, it is important not to delay, but to act promptly after that breach occurs.

The advantage of succeeding in establishing constructive dismissal is that potential compensation for both wrongful and unfair dismissal may follow. However, the risk is that if the claim is not made out, the departure will simply be regarded as a resignation.

The decision to pursue a claim for constructive dismissal and the appropriate manner in which to effect the departure are therefore key strategic issues that our specialist team will advise on.

For further information on constructive dismissal, please download a copy of our 'Pushed Out' factsheet.