Constructive dismissal occurs when an employee is forced to resign and hand in their notice because the employer or those acting with the employer’s knowledge, or co-workers have made life intolerable for the employee. The success of an application by a constructive dismissal solicitor for compensation is dependent on conduct immediately prior to resignation. The test is subjective which means that if the applicant finds the behaviour unacceptable whereas more stoical employees may not be bothered by it, the claim will still succeed. It is no defence by the employer’s solicitor to subsequently say it was ‘only a joke’ or ‘banter’ or to dismiss the response as being due to the employee’s unusual sensitivity. Whilst behaviour that is likely to precipitate resignation classed as constructive dismissal is usually the result of a long drawn out sequence of unacceptable events culminating in one final event immediately prior to resignation there are circumstances where a constructive dismissal solicitor can show that just one incident is enough to justify resignation suffice to succeed in a compensation claim. An employee may expect to work in an atmosphere that is comfortable and free from harassment or abuse and even if the bad behaviour is carried out by other employees or co-workers, the employer will still be liable. If co-workers behaviour has been reported to management and nothing has been done about it or the behaviour continues despite warnings the employer will still be liable.
There are many types of behaviour that can constitute grounds for resignation and some are more direct than others. Direct behaviour includes insults and abuse aimed at the employee from the perpetrator. Indirect behaviour includes less obvious harassment such as insulting a group to which the employee belongs. As an example constant abusive or derogatory comments about the religion of Islam may be sufficient to justify action for constructive dismissal following resignation, if the employee was a Muslim. There are other less direct methods of offending specific employees such as changing job descriptions, or altering pay, or refusing overtime which is aimed at one particular person as a bullying tactic. Men who display images of naked women or pornographic material around their workstation may be deliberately attempting to ‘have a laugh’ at offended women which again is abusive and unlawful behaviour. The circumstances that can lead to offence are extremely wide and being subjective may well lead to legal proceedings.
Most employment solicitors in UK will deal with compensation claims before the Employment Tribunal using a no win no fee arrangement, otherwise known as a conditional fee arrangement (CFA). The client only pays legal fees if the case is won and then on a pre-arranged basis, usually as a percentage of the award or in some cases it may be a fixed sum to be agreed. If the case is lost, the constructive dismissal solicitor writes off his time and expenses and the client does not receive a bill. Claims carried out this way are risk free for the client. In some cases, legal aid is available if a client wishes to appeal the decision of the Employment Tribunal to the Employment Appeal Tribunal.