Constructive dismissal


A. No, a constructive dismissal is not necessarily an unfair dismissal. A constructive dismissal takes place when an employee resigns in response to a fundamental breach of contract committed by the employer. 


Whether or not a constructive dismissal has occurred is by no means a straightforward question. 


Numerous issues may arise around this, such as whether a breach of contract took place, whether this breach was significant enough, whether the employee resigned in response to it and whether the employee resigned quickly enough.


If an employee does establish that a constructive dismissal has taken place, they may be able to pursue a successful claim of constructive unfair dismissal in the employment tribunal. 


However, resigning to pursue a claim is a very high risk strategy which should not be undertaken lightly. 


Legal advice and other union support should be sought in advance. 


Faced with a claim for constructive unfair dismissal, an employer may well argue that even if a constructive dismissal took place, there was a fair reason for the dismissal and that they behaved reasonably in relation to this. 


Whether or not an employer is successful in asserting that such a dismissal was fair will depend on the individual facts of each case.