Constructive Dismissal UK: How to Prove and Win a Claim

by | Mar 12 2021 | Employment Disputes

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By Alex Ashcroft
Alex heads up LGBT Lawyers' web design and writes about LGBT legal issues in his spare time. While not part of the LGBT community himself, Alex is an avid supporter of LGBT rights. With interests in politics and connections in Brighton's LGBT music scene, Alex brings another valuable perspective to LGBT life.

How to prove constructive dismissal uk | Read Time 3-5 Minutes.

What is considered constructive dismissal in the uk?

In the UK constructive dismissal arises when an employee resigns from their job in response to their employer breaching their employment contract terms. Typically, employers break the terms of their contract by not paying wages or by not correctly dealing with bullying in the workplace.

For those who are part of the LGBT+ community, harassment and bullying are significantly worse, especially in the workplace. In the UK, an astonishing 3,213 LGBT employees revealed they had been subjected to troubling discrimination while at work. Moreover, almost one in 5 (18%) LGBT employees had been the target of discriminatory comments or behaviour from work colleagues because they were LGBT+.

Therefore, to aid the LGBT+ community members who do not receive employer’s protection from bullying and harassment, we have comprised a blog specifically detailing what constitutes as constructive dismissal, how you can prove constructive dismissal and the maximum pay out you can receive from a claim.

“Many conversations about diversity and inclusion do not happen in the boardroom because people are embarrassed at using unfamiliar words or afraid of saying the wrong thing — yet this is the very place we need to be talking about it. The business case speaks for itself — diverse teams are more innovative and successful in going after new markets.”

Quote taken from Inga Beale, Former CEO of Lloyd’s of London

What conduct is considered to be worthy of a constructive dismissal claim in the uk?

Although it can be quite challenging to claim constructive dismissal, it is possible. Over the last 12 months, there have been over 100,000 tribunal applications made nationwide.

Typically, employees rely on a breach of the implied terms of mutual trust and confidence before claiming for constructive dismissal. This typically amounts to an employee resigning because the employer has behaved in such a way that seriously harmed the trust and confidence of their employment relationship.

To strongly increase your chances of winning a constructive dismissal case, you must be able to prove your employer has fundamentally broken the terms of your employment contract. In the eyes of the law, a fundamental breach is when an employer breaches an express or implied term of your employment contract. Examples of fundamental breaches include:

1. Whilst at work, your employer continually fails to address LGBT+ harassment and bullying among employees.

2. Incompetent handling of disciplinary matters, e.g., suspending you without giving you an justified warning.

3. Giving you an excessive workload, which could affect your health negatively.

4. Unreasonable changes have been made to your working patterns or work location without agreement.

Starting a constructive dismissal claim can be difficult. It requires specific legal advice to ensure you the best chance of winning the case. A lawyer will initiate the process by informing the Advisory, Conciliation and Arbitration (Acas) of your behalf.

“If you haven’t hired a team of people who are of color, female, and/or LGBT to actively turn over every stone, to scope out every nook and cranny, to pop out of every bush, to find every qualified underrepresented founder in this country, you’re going to miss out on a lot of money when the rest of the investment world gets it.”

Quote taken from Arlan Hamilton, Cofounder and CEO of Backstage Capital

How to prove constructive dismissal in the uk

How to prove constructive dismissal uk

You must collect evidence when your employer fundamentally breaks the terms of your employment contract. By collecting evidence, you will significantly increase your chances of a successful claim.

For example, if you are subject to bullying and harassment at work for being LGBT+ and your employer refuses to act, you should:

  1. Take detailed records of any conversations you have with your employer where you attempt to make an informal complaint.
  2. Ensure that you make a copy and screenshot any email exchanges where you raise the issue with your employer.
  3. If you write a formal letter of complaint (grievance) to your employer, make sure that you make two copies. This can be used as evidence that you attempted to resolve the issue whilst working.
  4. If you have any disciplinary meetings to discuss the harassment and bullying, record it on your phone.
  5. In the case where the harassment and bullying are online making sure you document all social media exchanges.
  6. Make copies of all your employment contracts and policies before making a claim.

It is advised to seek legal advice one you have collected evidence. A lawyer will be able to evaluate if the evidence is strong enough to win your case. Furthermore, a lawyer can also structure a coherent argument to give you the best chance of winning at the employment tribunal.

A lawyer will also make you aware of any mandatory time limits when making a constructive dismissal claim. For more information on starting a claim a constructive dismissal claim, click here.

How do I ensure that my constructive dismissal claim is successful in the uk?

For a constructive dismissal claim to succeed, you will have to ensure that you can prove that your employer’s actions left you with no choice but to resign. Additionally, when taking a claim to the employment tribunal, you must ensure that you can demonstrate that you have genuinely attempted to exhaust all methods of resolving the issue informally and formally whilst at work. This will help strengthen your case, as it presents that you have tried to address the issue whilst working.

The 3 most important requirements which must be met to ensure the best chance of succeeding in your constructive dismissal claim include:

1. When resigning, you must include a direct response to the breach in the resignation letter. If you include unrelated reasons, it can lead to your claim being dismissed at an employment tribunal.

2. You must be able to prove there was an actual or anticipatory breach by your employer, which fundamentally broke the terms and conditions of your employment contract.

3. If you recognise that your employer has fundamentally broken the contract, you must not delay your resignation longer than two weeks. This will ensure you the best chance when claiming the employment tribunal. If you delay any longer, the employment tribunal can regard you as having elected to affirm the right. This means you accept the employer’s breach, so you would not be able to claim on these grounds.

It should also be noted that if you are to make informal and formal complaints, and the employer responds by attempting to amend the situation following the procedures in your employment contract, the claim would likely fail.

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