Employee named John for the purpose of this post has had just about enough of his employer’s conduct, resigns, and attends with his solicitor to discuss taking an unfair dismissal case against the employer.
John did not want to leave but had no alternative. He could not take it anymore and therefore had to resign.
If this arises, the solicitor will likely discuss with John the option of taking a Constructive Dismissal claim against his employer. Constructive dismissal claims are by their nature difficult to succeed in. This is not to dissuade an employee from activating their legal rights, but it is just the way it is with Constructive Dismissal actions, as the employee is placed on a high burden of proof in this legal action type.
If the employee left the employment without availing of every Grievance Procedure mechanism available, it can be very difficult to succeed in this type of action. Not unheard of, but no doubt difficult.
Constructive Dismissal occurs when the employee ends the contract because of the employer conduct.
Employee John, by way of example, is required to prove that the employer is guilty of conduct which was a significant breach going to the root of the contract, or which shows the employer no longer intends to be bound an essential term of contract, and so the employee was entitled to treat himself/herself as discharged.
If the employee cannot prove this, then the employee must prove that the employer conducted himself so unreasonably that the employee cannot be fairly expected to put up with it any longer. This is often not easy to do without hard evidence.
Sometimes though a data access request can yield evidential proof which supports the employees belief that the employer’s conduct was orchestrated to get them out by means of resigning.
If the employee submits a data access request to the employer with specific persons in the company requested to form part of the data access release request, the employee may find powerful evidence to assist them proving their case.
This could be in the form of an email or letter from within the employer’s organisation which clearly indicates the employer made up their mind to get rid of the employee, for example, and the subsequent conduct of the employer becomes all the clearer when the case is presented to a case adjudicator ie decision maker.
The employee then has tangible proof of the employers intention, and the orchestrated circumstances in order to wear down the employee, so they would leave, become a more digestible set of facts for the case adjudicator to accept. This employee then may well succeed in their constructive dismissal action against the employer as a result.
Please be advised that the above-mentioned material is intended as an overview and as a broad out-line of the topic discussed. It should not be considered as complete and comprehensive legal advice, nor act as an appropriate substitute.
Due care has been taken in the publication of this article and we do not accept legal liability as a result of reliance on any material covered in the above article.
8(b) “In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement”.