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Constructive Dismissal - anyone won?

Discussion in 'Workplace dilemmas' started by nil_satis_nisi_optimum, Jun 18, 2019.

  1. nil_satis_nisi_optimum

    nil_satis_nisi_optimum New commenter

    Hi all,

    I am contemplating going down the legal route against my current employer - has anybody any experience of bringing a successful case against their employer?

    Thanks.
     
  2. dts

    dts Occasional commenter

    The advice I've seen is that winning such a case is incredibly difficult.
     
  3. chevonanc

    chevonanc New commenter

    I personally wouldn't move a muscle without speaking to your Union first. My understanding is that a constructive dismissal case is near impossible to win after you've left. Good luck.
     
  4. nomad

    nomad Star commenter

    A constructive dismissal is where you are forced to resign in response to your employer’s conduct, which has made your position untenable. Although it’s referred to as a “dismissal” in law, it is in practical terms a resignation. So, if you have a current employer, the answer is no. Well, not at this stage, since you will have to resign first.

    Firstly, and most importantly, you must have been continuously employed with the same employer for a period of 2 years in order to bring a claim. This is unless your case falls within one of the few exceptions where no minimum service is required, for example, where it relates to discrimination.

    If you can show that your employer has fundamentally acted in a way that makes your position untenable and goes to the root of your employment relationship, then your claim may well succeed. The onus is, however, on you to prove that your employer was in breach.

    In many cases, the conduct amounting to a breach by an employer will be obvious. In many situations, however, it will be more of a grey area. Yes, your employer may have behaved badly, but was it so bad that it made your continuing to be employed untenable? If the matter reached the tribunal stage, it will be determined on its own facts, and what is considered “reasonable”.

    It is recommended, and expected under the ACAS code of practice, that employees lodge a formal grievance against employers in constructive dismissal claims before taking any steps to resign. The reason for this is that it gives your employer an opportunity to resolve the dispute. The failure to lodge a grievance before resigning also means an employment tribunal can reduce any damages you are awarded by up to 25%.

    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.
     
    Pomza, ilovesooty and Piranha like this.
  5. Rott Weiler

    Rott Weiler Star commenter Forum guide

    Pomza and Piranha like this.
  6. Rott Weiler

    Rott Weiler Star commenter Forum guide

    Definitely don't resign on grounds of CD without union/legal advice. But as I understand it you can't bring a CD claim unless you have left. You have to resign and then bring a CD claim. If you don't resign and continue working there is no dismissal, constructive or otherwise! It's the resigning that is high risk. If you resign then claim CD but your CD case fails (isn't strong enough) then all that's happened is you've resigned, you have no compensation, and no job.
     
    Pomza and Piranha like this.
  7. Piranha

    Piranha Star commenter

    Yes. this may well be the reason why we have never heard of a teacher succeeding with this. I haven't even heard of a teacher trying it. If he case were so clear cut, the school would we well advised to offer a settlement.
     
    PeterQuint likes this.
  8. afterdark

    afterdark Established commenter

    That would depend entirely on the conduct of the school (and in particular the SLT/SMT)

    I know of a case that was won.

    Top advice. The case I recall had the regional union rep in. And ACAS.

    I would say that I am going a long long way back and things may have changed now.

    The agreement I know of included a non-disclosure clause.

    But you can win a constructive dismissal case. Just make sure that you have the law on your side.
     
  9. ridleyrumpus

    ridleyrumpus Lead commenter

  10. Applejacks9

    Applejacks9 New commenter

    If you’ve not already resigned claiming ‘constructive dismissal’ don’t. First speak to your union rep at region (if you have one). You need a very well evidenced case of you employers breaches of contract/trust etc, to prove ‘constructive dismissal’ to a tribunal. I have had direct involvement in two cases. One in a School and one in a Local Authority. Neither went to tribunal both were settled satisfactory by way of a compromise/settlement agreement. In one case the union region and union lawyers were directly involved, they recommended that they approached the employer, with a proposal (without prejudice) to settle for £X, or we would proceed to tribunal. I though that they had grossly underestimated, the strength of the claim, the multiple serious breaches we could evidence against the employer at tribunal and the employers lack of appetite to have their breaches all aired in public. The result was that we asked for 5 times £X and after negotiating received 4 x £X that they thought was the maximum. Hence my distrust and low opinion of both unions and lawyers. The second case, with no union/legal involvement was 2.5 x higher than the employers first without prejudice offer. In both cases references were agreed as part of the deal.

    In any case you do need advice on the strength of your position before you resign. Good luck.
     
  11. Rott Weiler

    Rott Weiler Star commenter Forum guide

    Interesting case @ridleyrumpus but so as not to give a misleading impression of the compensation that a successful CD claim might result in the Bishop of Llandaff Church in Wales School case was primarily about Disability Discrimination not CD, although the plaintiff was found to have been CD'd as well. It's the Disability Discrimination that resulted in the very high damages (£346,000+) not the CD. As you know there is no cap on disability discrimination claims but successful CD claims will not award compensation for injury to feelings or damage to health. I haven't seen how the £346k was broken down under the heads of claim.

    Of course OP may also have a disability discrimination claim, but so far has only referred to CD. Maybe OP will give us some more details. All the more reason why OP needs union or professional legal advice.
     
    Piranha and Pomza like this.
  12. Applejacks9

    Applejacks9 New commenter

    Tribunal payments for CD are prescriptive and limited. Any claims involving disability, or any other of the growing list of protected characteristics are potentially much higher, depending on the outcome and facts of the individual case.
     
  13. grumpydogwoman

    grumpydogwoman Star commenter

    And that teacher was later sectioned! So the extent of her difficulties must have been beyond question.

    Such cases are incredibly difficult. Her Maj (not a teacher) opted for SA and had a top lawyer but it was tough. They tried all sorts of tactics to discredit her and intimidate. She's normally a tough cookie but she couldn't face a tribunal.
     
  14. cornflake

    cornflake Established commenter

    I have recently been advised that I could consider constructive dismissal (by union)... or I could go for a settlement agreement. As it happens, the situation has mainly been resolved, because I lodged a grievance that brought about one significant change for me. So, yes, I think that step is important.
     
    Piranha and Pomza like this.
  15. PeterQuint

    PeterQuint Lead commenter

    The biggest issue is that you can only judge how likely a ‘win’ is by seeing how many have won (at an IT).

    But many schools faced with an IT will ‘settle out of court’, which will involve an SA, so we’ll never know how many got almost all they wanted.

    So, official wins are rare. But unofficial wins may be either rare, common, or somewhere in between.
     
  16. caterpillartobutterfly

    caterpillartobutterfly Star commenter

    Lara mfl 05 and Rott Weiler like this.

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