Dr. Christine Calleja recently delivered a three-hour seminar,
organised by Society Education, on the topic of 'Constructive
Dismissal'. Whilst most employers are aware of the legal
consequences they may face in cases of unlawful termination of
employment, including sometimes rather hefty awards ordered by the
Industrial Tribunal, the concept of 'constructive
dismissal' will not be familiar to many.
In certain situations, which can be interpreted as amounting to
a breach of contract, the employee may be entitled to resign and
bring forward a claim for unfair dismissal, even though such
employee was never directly dismissed. The extent to which the law
tries to protect employees can be seen in the development of
implied terms in the employment contract, which if breached, can
give rise to a 'constructive dismissal'. Moreover, unlike
in other areas of the law, sometimes these implied terms, such as
the implied term to provide a safe system of work, will take
precedence and override the express terms which have been agreed to
by the parties in the employment contract.
In order for a claim of constructive dismissal to succeed, there
are certain elements which need to be proven by the employee such
as a serious breach of contract and the timeliness of the reaction
to this breach by the employee. There can also potentially exist
situations in which although the employee was constructively
dismissed, the employer could then bring forward the defence that
such dismissal was fair. The employer needs to be aware also of the
behaviour of other members of the staff, in particular the
management, especially in corporate-employer scenarios.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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