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3 Questions You Should Ask Before Starting Your Constructive Dismissal Claim

Updated on August 8, 2017
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Kate has over five years’ experience as an Employment and Personal Injury legal professional. She runs LawCat, a legal explanations website.

One of the most common questions raised regarding employment law concerns employees who feel that they are being ‘forced’ out of their jobs. These employees are never formally sacked. Instead, their working conditions are slowly made impossible.

When you are forced to leave your job because your employer has either changed your working conditions to make your job impossible for you, or your employer has behaved (or allowed other members of staff to act) in such a way as to constitute bullying or harassment you might consider bringing a claim for constructive dismissal.

However, before you charge into a claim, you need to ask yourself the following three questions:-

Question One: Were You Constructively Dismissed?

The first and most important question, are you being (or have been) constructively dismissed.

Finding yourself in a position where you feel you are being forced out of your job is going to be unpleasant and can be highly emotional. It 's hard to do but you must take a step back and try to look at the situation objectively.

Your employer’s behaviour can be a single, serious act or a collection of small cumulative actions that when viewed together are serious. You cannot bring a claim for constructive dismissal for inconsequential actions, or a single small act.

Examples of behaviours can include, your employer not paying you, your employer suddenly demoting you or making unreasonable changes to your working conditions that prevent you from being able to perform your job (such as amending the hours of a part time parent so that they cannot work due to child care), and being aware of but allowing bullying to continue.

For your employer’s behaviour to be considered constructive dismissal you will need to be able to show that, your employer, by their action or inaction, has committed a serious breach of your contract, that you felt forced out of your job because of that breach, and that you have made your employer aware that you are not satisfied with the way they are acting and have given them an opportunity to resolve the situation.

Question Two: Is There a Way to Resolve The Situation Without Legal Action?

Before jumping straight into the legal proceedings, which can be stressful, expensive and sometimes unnecessary, you should make sure you have exhausted all other options available to resolve the situation.

This includes discussing the matter informally with your employer, raising a formal concern or grievance, and contacting ACAS to attempt mediation or early conciliation. Leaving your job and bringing legal action should be your last resort

It can be disheartening to attempt some of these options, especially when you are convinced your employer won’t listen to you. But it is crucial that you give your employer the opportunity to engage with you in resolving the situation.

Under the current law, you cannot bring a claim to the employment Tribunal until you have, as a bare minimum, contacted ACAS to attempt early conciliation. You need to receive a certificate from ACAS before you can issue a claim in the employment tribunal.

Question Three: Is it Financially Worth it to Bring a Claim?

There is no guarantee that you will win your claim.

It can be a hard fact to swallow, but no matter how confident you are that your employer’s behaviour was severer enough to warrant a constructive dismissal there is always an element of risk in these types of claim, and you will always have a chance of walking away empty handed.

Even if you do succeed in your claim, you will never recover an ‘immense’ sum of money. Compensation in constructive dismissal claims is regulated and restricted. You cannot claim a figure that you feel is fair considering the amount of upset that was caused to you. You must calculate a figure based in part on a calculation laid out by law and in another part based on your financial losses caused by your unemployment.

You can claim what is known as the basic award and a compensatory award.

The Basic Award

The basic award is calculated by how long you have worked for your employer, your age at the time you left, and how much your weekly pay was before tax and national insurance are deducted.

If you were between the ages of 22 – 40 at the time of dismissal your basic award will be one weeks’ pay for every year you were employed. So, if you were employed for ten years and earned £250 a week, your calculation would look like this.

£250 (weekly wage) X 10 (years worked) = £2,500.00 (basic award)

If you were over 41 at the time of dismissal, you would receive 1.5 weeks wages for every year you were employed. If you were under the age of 22, then you will receive 0.5 weeks wages for every year you worked.

There is also a maximum amount that can count as a week's pay. If your gross weekly pay is more than £479, you can only claim up to £479 per week. So, if you earned £500 per week, you would only be able to claim £479 per week to calculate the basic award.

Compensatory Award

Your compensatory award is calculated by what losses you can prove. You will usually be able to claim three months of unpaid wages. To claim this, you must have pay slips to show what you would have earned had you been working for your employer. You must also have evidence that you have tried to reduce this loss by trying to find suitable employment (such as application forms you have filled out, print outs from the job centre of jobs you have tried to get interviews for, etc.). If you have managed to gain employment in less than three months, you will not be able to claim a loss of earnings after you started working again. You will also have to subtract any benefit received (such as ESA or Universal Credit) from your loss of earnings claim.

If your new job pays less than the job you left then you can claim a few months loss of earnings for the difference in your wages e.g.: Job A that you had to leave paid £250 per week, you new Job B pays £200.00 per week, you can claim the £50.00 per week difference.

You can also claim for other financial costs that you have suffered because of your dismissal, such as travel expenses to attend job interviews. You can also claim for your loss of statutory rights this is usually limited to £200.00.

Lastly, you should keep in mind that the amount you receive at the end of the day will be decided by the employment tribunal and the amount you think you should receive may not be the amount you get, even if you win.

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Conclusion

Bringing a claim to the employment tribunal for constructive dismissal is not a decision that should be made lightly, and you should make sure to give the above three questions carefully before proceeding. Ultimately it is your decision as to whether or not you wish to proceed.

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