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WHAT IS CONSTRUCTIVE DISMISSAL?

30.09.2013

Constructive DismissalIn short, one of the most often used but least understood terms of employment law!

Constructive dismissal is the term used where an employee resigns in response to their employer’s conduct in breach of an important term of their employment contract.  This can be a breach of an express or an implied term.  The employer’s conduct is often referred to as a repudiatory breach.

For a constructive dismissal claim to succeed, the employee must show the following:

• The employer was in repudiatory breach of the employment contract.

• The employee resigned in response to that breach.

• The employee did not delay too long in resigning in response to their employer’s breach.

• If the employee continues working for any length of time without leaving, he is likely to lose his right to treat the contract as breached and will be regarded as having chosen to affirm the contract.

Repudiatory conduct may not only be just one incident; sometimes it is a series of incidents or a pattern of behaviour which, taken as a whole, amounts to repudiatory conduct. In these circumstances, an employment tribunal may consider that any previous breaches of contract that may have been waived by the employee should be treated as part of a continuing course of conduct.

If an employee can establish that he has been constructively dismissed, an employment tribunal will assess the loss that he has suffered.  The employee may receive compensation for breach of contract and/or unfair dismissal.

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