Constructive advice about constructive dismissal
Some employers think that if they never sack anyone they will avoid Employment Tribunal claims. The way this employer deals with an employee this he is not happy with is to make the employees life at work miserable in the hope of forcing him or her to leave.
Classic tactics such an employer will adopt are unfair allocation of work, dismissive treatment, rudeness and abuse, reducing pay and benefits.
Quite often this approach works and the employee does find another job and goes. However it is not the right way to treat people and it is not the best way to run a business.
Apart from the loss of morale in the workforce generally the employer will see much higher absence levels than in comparable companies and also runs the real risk of expensive constructive dismissal claims.
So what is constructive dismissal?
A constructive dismissal arises when an employer breaks an important term of the employees contract of employment, which is either serious enough to justify the employee leaving or is the final straw that breaks the camels back. The employee is entitled then to leave in response to that breach of contract and must do so without delay and not for some other reason.
An employee who has been employed for one year or more who has been constructively dismissed can make a claim to an employment tribunal – within 3 months – as if he had been unfairly dismissed.
If you are the employee who is being badly treated what should you do? The starting point is not to walk out of your job. The starting point is to understand a bit about the law but not a lot! Then to use that knowledge to your advantage. Ideally you should be aiming to get your employer to treat you properly. If this is not possible you need enough time to find another job while still employed, bringing a constructive dismissal claim should be a last resort. This is because going to an employment tribunal is stressful, frequently expensive and rarely will a Claimant get what he feels is enough compensation. Finally getting another job can be difficult.
Back to the law, if you are being treated badly but cannot point to a clause in your contract of employment that is being broken you maybe able to rely on the implied term of trust and confidence. Basically the law says that in every contract of employment there is an unwritten term that states that the employer will treat the employee properly and a term that states that the employee will treat the employer properly.
This term will not be broken by the everyday friction that arises in the workplace but can easily be broken by abuse, bullying or harassment.
If you are being treated in such a way, keep a diary of what happens to you – what was said who said it, when and where it happened and who else was present. Keep such a record factual. Make sure if you can that you do not respond to bad language with bad language of your own.
At a very early stage you must raise a grievance using your employers grievance procedures. Set out your complaints in writing, even if you are complaining about senior managers. You should be ready to attend meetings to present your case. You have a right to be accompanied at such meetings. This will be a stressful experience but unless you are really too ill to work, do not go off sick, and remember doing nothing is not really an option.
This is because you will feel worse if you have no input into how you are being treated and secondly back to the law, you cannot bring a claim of constructive dismissal unless you have raised a grievance complaining about the treatment you have suffered.
Published 27/09/2006.
