Constructive Dismissal Claim: Steps you should take before you resign

Sometimes your employer can make life unbearable for you, be it how they talk to you in front of other employees, the work load they put you under or changes to the way you are meant to work. However before you resign and try to take them to tribunal for a constructive dismissal claim there are certain things that you should do before you make the decision to resign.

The first thing to note is what actually needs to be fulfilled for a constructive dismissal claim to be successful.[1]

Has your contract been breached?

You need to be able to demonstrate that your employer has seriously breached their contract. This breach needs to be a serious one and could include making unreasonable changes to your contract (e.g. work shifts which go against your contract, dramatically changing the location of your work place, severe bullying and harassment etc).

You then need to show that it was because of this breach that you felt you had no choice but to leave and finally you have to show that you never accepted your employer’s actions.  If all of those points have been fulfilled there may potentially be claim against your employer.

Can it be dealt with internally?

However before you quit there are steps that you need to take.

STEP 1

First and foremost if you feel like you are in such a situation you should try and deal with the matter informally. Speak to your line manager or someone who you trust higher up in the business.

This might be all that is necessary to turn things around and improve your situation or in a worse case scenario a tribunal will see that you have attempted to deal with the matter internally before resorting to legal action.

Raising a grievance

STEP 2

If the informal chat with a manager did not work then the next step is absolutely crucial and that is to submit an official grievance (a complaint in other words).

This process will differ from company to company however there should be a grievance policy that can be found in an employee’s handbook.

Follow the procedure which is laid out within this policy to ensure that your complaint is heard (when submitting the complaint it may be advisable to put in some suggestions for solutions to your problems, otherwise the employer might try to impose some of his own without talking things through with you).

We cannot stress how important this step is. If you are even contemplating making a claim for constructive dismissal, it is essential to make a formal grievance first.

Without a grievance it is incredibly unlikely that your claim will be successful (unless your employer does something drastic like punch you in the face which could be grounds for an instant resignation).

Appealing a grievance

STEP 3

It should also be noted that you are able to appeal grievances and as such it might be in your best interest to do so.

STEP 4

The final step which although is not completely necessary but could be helpful is to suggest mediation which can be done through ACAS^[2]. This involves a trained mediator listening to the issues and trying to come to an understanding.

Timing your resignation

When you have exhausted all of the above options it may finally be time to start considering taking legal action. In this consideration you need to think of the timing for your resignation.

You need to make sure that when you resign a fundamental breach of your contract has occurred. If you leave to early your employer will show this and seriously weaken your case.

On the other hand you can leave too late and again your employer will argue that you have accepted the breach by staying that amount of time.

So from what has been said above it is evident that making a claim for constructive dismissal is never going to be easy. If we can give you one piece of advice if you do think you have a strong enough case to go forward, that would be to make sure you submit a grievance.