Constructive dismissal is a specific legal claim that an employee can bring if their employer’s conduct has seriously breached the employee’s contract of employment. This breach entitles the employee to resign and say they were dismissed.

The legal concept is complex and multi-faceted. What sort of a breach is serious enough? What must the employee do in response to preserve a tribunal claim? And, perhaps most importantly, how can employers avoid these claims?  That’s what we’ll be focussing on here.

Tips to Avoid Constructive Dismissal

  • Try to make things right with the employee. You may not be able to ‘cure’ a breach but if you can stop the employee from resigning, you’ll likely avoid a messy and expensive constructive dismissal claim.
  • Encourage the employee to explain their concerns in detail and to raise a grievance. This will help you get to the heart of their concerns and buy more time to resolve them. However, make sure you follow a fair process. Not doing so could, of itself, amount to a fundamental breach of contract.
  • Follow the grievance process even if the employee is determined to leave. Dealing with their grievance will allow you to pinpoint any weakness in their case and help you defend a future constructive dismissal claim — and avoid an uplift under the Acas Code of Practice on disciplinary and grievance procedures.
  • Don’t allow issues to escalate. Keep calm and persuade other members of staff to do the same. This will make it more likely you can smooth things over with the employee and help prevent any further breaches.
  • If you genuinely want the employee to stay, consider making them an offer they’ll find hard to refuse. This could of course be purely financial, but it might involve other improvements, such as a better role, benefits, flexibility, and last (but not least) no further mistreatment and ongoing improvements in their working conditions.
  • If you don’t want them to stay, but want to avoid fighting a tribunal claim, have an ‘off the record’ (without prejudice or protected) conversation about settlement.
  • If none of this works and the employee resigns, list all the ways in which the employee may have affirmed the contract before they did so and gather together the evidence to prove it.