The Art of Defending Constructive Dismissal Claims
- Employment Law
- 30th Nov 2023
Constructive dismissal refers to a situation where an employee resigns from their job in response to a fundamental breach of their employment contract by the employer. The breach may be a single serious incident or a series of incidents that cumulatively create an untenable working environment. In essence, the employee resigns because they feel they […]
By Julie SabbaMLP Law
Constructive dismissal refers to a situation where an employee resigns from their job in response to a fundamental breach of their employment contract by the employer. The breach may be a single serious incident or a series of incidents that cumulatively create an untenable working environment. In essence, the employee resigns because they feel they have no other reasonable option due to the employer’s actions.
To effectively contest a constructive dismissal claim, it’s crucial to understand the key elements involved. The Employment team at mlplaw have therefore set out how to best navigate defending such a claim.
Understanding the Elements of Constructive Dismissal
First, it’s crucial to identify the specific terms of the employment contract that the employee claims were breached. This could include issues such as changes in job responsibilities, working conditions, harassment, or a breakdown in trust between the parties.
Next, it is important to determine if there has been a fundamental breach of the employment contract. Is the alleged breach of such significance that it goes to the root of the employment relationship, making it impossible for the employee to continue working?
Defending a Claim
Once you have established the central pillars of the case brought by the employee, you must determine the grounds for refuting the claim. The two key areas of challenge are:
- That the employer did not breach the contract as alleged; and/or
- That action (or inaction) by the employer was not sufficient to amount to a material breach of contract.
Once the overarching approach has been determined, it must be narrated in the defence form – known as an ET3 – that is then submitted to the Employment Tribunal. The ET3 must be submitted within 28 days from the date the employer received the claim form and can be done online.
It is also necessary to collate detailed written records of all relevant communications, incidents, and significant events, relating to the employee. This includes emails, meeting notes and any other documentation that may be pertinent to the case, as they will form the basis of the documentary evidence in the employer’s defence.
Similarly, employers who utilise a fair and reasonable procedure when faced with an aggrieved employee, can rely on the documentary evidence generated during that process in the event of a claim. Thorough grievance procedures, supported by detailed policy documentation addressing various issues, such as discrimination in the workplace, bullying and harassment, are all vital. In addition, having those robust policies in place can also demonstrate an employer’s commitment to fair treatment and compliance with the law and can help to reduce the risk of employees making a constructive dismissal claim in the first place.
Moreover, a constructive dismissal claim is often founded on the assertion that there has been a breach of the implied duty of trust and confidence. This requires an employer to demonstrate that they had reasonable and proper cause for behaving in a particular way. Ensuring that employees are aware of the reasons behind decisions that may impact their employment can minimise the risk of litigation. Where this approach has been taken, those involved in the process will be useful witnesses in the event of a claim. Therefore, businesses that have communicated changes that affect the employment relationship in a transparent manner (such as changing an employee’s role or terms and conditions) can refer to those processes to refute an accusation that the employer has acted in such a way as to undermine trust.
Finally, given that prevention is better than cure, businesses should consider early intervention when faced with an unhappy employee. Many employers find that when they encourage open communication in the workplace, it can lead to concerns being addressed before they escalate. This may involve internal mediation or other alternative dispute resolution methods, which can resolve issues without the need for the employee to resort to legal action.
In summary, by combining legal expertise, communication strategies, and proactive measures, employers can be in a stronger position when reacting to constructive dismissal claims. It’s important to approach each case individually, considering the unique circumstances and tailoring the defence strategy accordingly.
About the expert
Stephen is the Owner of MLP Law and leads our Commercial, IP and Dispute Resolution teams which provide advice on all aspects of the law relating to mergers, acquisitions, financing, re-structuring, complex commercial contracts, standard trading terms, share options, shareholder and partnership agreements, commercial dispute resolution, joint venture and partnering arrangements, IT and Technology law, Intellectual Property, EU and competition law, Brexit and GDPR.
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