Proving Constructive Dismissal Using the Employment Rights Act
Proving Constructive Dismissal
When a dispute between an employer and employee arises, one of the main issues to consider is Constructive Dismissals and how they can affect the Employment Relations Act. The Act sets out very specific rules regarding how an employee can make a complaint for breach of contract or fair and consistent treatment. Common examples of situations which could result in a breach of agreement allowing an employee to quit and request a constructive dismissal include:
Unfair treatment or a lack of proper notice or break in service, when such has resulted from constructive dismissal. The most common way of proving that an employee was unfairly treated is to show that there was a prior unfair situation with the employer which could have been addressed through the employer’s disciplinary proceedings. Other ways of proving a dismissal would be if the employee made a personal grievance against the employer or there were facts that pointed to this being the case. The most important thing to remember when considering the Constructive Dismissal process is that the employee must show that there was a problem with, or treatment of, the employee prior to the claim being filed. The employer must also be shown that the problem was so serious that it could not reasonably be resolved by the conduct of the employer. For example, if the employee was expected to attend a disciplinary hearing but the hearing did not go well, the employee could argue that it was a sham.
There are some employment relationships where it is more likely that a constructive dismissal claim will succeed than others. These relationships include those where the employee feels that they have been unfairly dismissed, or those where a problem, such as discrimination, was so severe that it required action to remedy the situation. A good example of this would be cases where a minor breach of contract occurred which was interpreted as an actual contract break in service, leading to the employee asking for an unfair dismissal or constructive dismissal claim. In such circumstances, employers should always seek legal advice in order to avoid prolonged court battles and excessive compensation awards.
Proving Constructive Dismissal Using the Employment Rights Act
The concept of proving constructive dismissal is quite simple. In order to be able to show that an employee’s dismissal was unjustifiable and that it was done arbitrarily, the employee must either be: a) having a reasonable and rational expectation of being dismissed; or b) having bad motives and intending to quit. If the employee is a first or second line employee and has a reasonable expectation of being dismissed; then the court can look to the employer’s contract and search out the reason for the dismissal. However, employees who are in the frontline of the company and who are paid their full wage and expect to be kept on the payroll will have a very different view of what is reasonable and what is not.
Unfortunately, proving constructive dismissal cases can often be an expensive process. The reason for this is that the Employment Tribunal requires that the employer show, by clear and reasonable evidence, that the steps taken were ones that could not reasonably be considered by any other person. To do this, the employer must hire a personal employment lawyer to fight your case. The employment lawyer is there to fight for you and make sure that you receive fair pay for your service. They will make sure that the employer does not use excessive or improper disciplinary methods to dismiss employees and that they only resort to these measures when they feel they have no other options left.
When an employer uses improper or unfair methods to dismiss employees, they can be held in violation of UK law and the European Working Time Directive. It is important to remember that if you decide to take up your constructive discharge claim, you may have to provide proof of these types of cases before the Employment Tribunal. If you cannot provide the necessary evidence, the employer may lose their right to use these methods against you.