I resign… but not quite yet — constructive dismissal
The concept of constructive dismissal is rooted in contract law. If the employer’s behaviour is so poor as to be a breach of the employment contract, the employee is entitled to resign in response and treat themselves as dismissed. In its most obvious form, a constructive dismissal involves the employee resigning and leaving employment on the spot, having told the employer in no uncertain terms why they believe the employment contract has been breached. Indeed, in pure contract law, to remain at work would be an ‘affirmation’ of the contract and would defeat the claimed constructive dismissal.
The Employment Rights Act modifies the position by still allowing an employee to claim constructive dismissal even if they give notice. It is accepted that they may need the financial benefit of some of the notice period or want to remain at work for a short time, for example, to assist a colleague with handover. Crucially though, an employee must not:
- Delay too long in their resignation; and
- Give equivocal reasons as to why they are leaving.
To do so would mean there is no constructive dismissal…
Click on the link below to read the rest of the Penningtons Manches briefing.