Even if you have no intention of staying with your employer, the lodging of a grievance and the contents of it is an important tactical consideration in relation to negotiating an exit with your employer see below. You therefore have the right to choose whether to treat the breach as terminating the relationship or not.
As mentioned above, however, you do have to be careful not to be seen to waive the breach by either accepting it or by not objecting to it. If this happens, it is likely to hamper your ability to then claim constructive dismissal. This will give you the best chance of protecting your position and being able to negotiate and bring a claim, if necessary.
If you have lodged a grievance beforehand, the reasons why you are not happy will have been set out there, but they should be addressed at the point of resignation too. This is not in the spirit of someone who considers that they have been forced out and wishing to bring a claim. You can find more information by clicking here to jump to the resignation page. Yes, you can. However, in many constructive dismissal situations, it may be more appropriate to resign and leave employment straight away.
This is especially where there is a serious allegation of breach of contract by your employer making it difficult to even work your notice. The notice period you would have been entitled to then forms part of your constructive dismissal claim. If there are no further breaches of contract, you would be unable to then make a claim based on constructive dismissal. Please click here to jump to our specific page on compensation in constructive dismissal claims. If you can show that you have been constructively dismissed, you may be released from the post-termination restrictions in your contract of employment such as not working for a competitor, or contacting your employers customers.
This is because the very nature of a constructive dismissal claim means that there has been a fundamental breach of contract by your employer, who cannot then rely on that contract in the future. It might work if your claim is strong enough and your employer acknowledges this- or can be persuaded to do so.
If not, legal steps could be taken to prevent you from breaching your covenants. It is always best to take legal advice before putting yourself in a position of a potential breach. Please click here to jump to the restrictive covenants page. There may well be the option of securing a negotiated exit with your employer, and this will depend on the circumstances you find yourself in.
Find out what you can do if you feel that you have to leave your job. Constructive dismissal is a form of dismissal. If you resign from your job because of your employer's behaviour, it may be considered to be constructive dismissal. You would need to show that:. The reason for leaving your job must be serious - there must be a fundamental breach of your contract.
Examples include:. Your employer's breach of contract may be one serious incident or the last in a series of less important incidents that are serious when taken together. Leaving your job should be the last resort. If you want to leave your job because of your employer's behaviour, firstly, speak to your manager and see if you can resolve the problem.
If the problem is with your manager, you could talk to:. If speaking to your manager or someone else doesn't work, try to sort out the problem with your employer through your company's standard grievance procedure.
If this doesn't work, and your employer agrees to it, you could try mediation through the Labour Relations Agency LRA , where a specialist will try to help you and your employer sort out the problem.
If a grievance is the subject of a claim to a tribunal, the tribunal may adjust any award up or down by as much as 50 per cent, where the provisions of the LRA Code of Practice on Discipline and Grievance Procedures have not been followed. If talking to your employer or mediation doesn't work and you feel you have to quit, you should first get some advice to see if you have a case for unfair or wrongful dismissal following a constructive dismissal.
You have a right to see your own score and be told why you were chosen. However, you don't have a right to see the scores of your colleagues. It can be very difficult to challenge the scoring process. To challenge it successfully, you would have to prove that there was some obvious flaw in the process. Even if you manage to change your score, you might still have been selected for redundancy if you would still have been the lowest-scoring employee. The tribunal will only look at whether the selection process was fair and whether a proper process could have made a difference to you.
Your employer should try to find you other suitable work in the company before they make you redundant. The tribunal will look at whether:. Your employer only has to make reasonable efforts to find you other work in the company. It might be enough just to direct you to vacancies listed on the company's website or through the HR department.
You should be offered any suitable alternative jobs without having to apply. You can find out more about jobs your employer should offer you. Your employer might put you through a selection process, particularly if the role is a promotion. If you think this has happened to you, talk to an adviser. However, if you turned down or didn't apply for other jobs you could have done, the tribunal might decide to reduce your compensation because you could have avoided being made redundant.
If the tribunal decide that redundancy was not the real reason for your dismissal, you might be able to make a claim for unfair dismissal or discrimination, or both. Check if you can make a claim for unfair dismissal. As part of the overriding requirement for reasonableness, employers are required to consider ways in which redundancies can be avoided.
Common examples are:. It is good practice for employees dismissed for redundancy to be offered the right to appeal the dismissal. There is however no set requirement to do so. The Acas Advisory booklet Redundancy handling which has no statutory effect suggests that it would be good practice to offer the employee a right of appeal since this can enable disputes to be resolved internally without recourse to Employment Tribunals.
If the reason or principal reason an employee is selected for redundancy is one of the prohibited grounds set out in section of the Employment Rights Act , the dismissal will be unfair. These include:. On the basis that the ACAS Code of Practice on Disciplinary and Grievance Procedures and the statutory right to be accompanied section 10 of the Employment Relations Act do not apply to redundancies; it would appear that employees do not have the right to be accompanied through redundancy procedures.
Nevertheless, failure to do so may in some circumstances lead to a risk of the dismissal being unfair.
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