Compulsory Dismissal Claim
Many successful, constructive dismissal claims have been brought on the basis of the fact that the employer has breached an implied contractual term of employment, for example: duty to take reasonable precaution with regards to employees health and safety issues. Duty of confidence and mutual trust. If the employer fails to comply with these conditions, then it is likely that a constructive dismissal claim will succeed.
It is not necessary to prove that there was a breach of any contract or employment agreement in order to succeed with a case against your employer. In some cases it may be sufficient that there were serious and wide-spread errors which brought about undue and unjustifiable inconvenience or hardship. In other instances administrative reasons such as lack of time or excessive paperwork can be cited. Where there are very good and genuine administrative reasons for the delay or failure to complete an intended action, the absence of genuine difficulties is not enough. Instead, the employer must still be found guilty of ignoring or failing to meet the implied terms of the employment agreement.
Constructive dismissal claims often center around the principle of mr/ds; breach of duty of confidence and trust. This principle is usually considered to be one of the most important parts of any employment contract because it states that the employer must honestly and fairly consider whether their conduct of the workplace is compatible with the performance expected of the employee. These principles may also apply to whether the dismissal was unjustifiable or in contravention of established principles of good practice. The two most common grounds on which claims for breach of these principles are based are a negative decision to terminate someone and/or a refusal to give them an opportunity to resign.
Negotiating For A Successful Compulsory Dismissal Claim
A negative decision to dismiss an employee because they refused to resign is termed a constructive dismissal. A decision to dismiss someone on this basis implies that the employer has taken the necessary steps to comply with their legal obligations to the employee. In these circumstances, the employee would resign rather than continue to remain employed. Reasonable administrative, remedial or redundancy measures would then be recommended to ensure that the employee’s position does not become unmanageable. This could be considered to be a breach of trust.
A refusal by an employer to implement reasonable administrative, remedial or redundancy measures relating to working hours is also considered to be a case of constructive dismissal. Under these circumstances, if an employee is working under unfair or unhealthy working hours, they may submit a claim for unfair dismissal. This can include working extra hours for little or no pay, or excessive overtime, either of which may lead to a loss of salary or bonus. As long as the employee has properly identified the reason for their complaint, and provided documentation to support their claims, they may win their compensation claim.
It is always possible for an employee to negotiate their way out of a job, but only do so after having gone through the process outlined above. It is advisable to take advice from an employment solicitor, because the law can become quite complex. But in most cases, a proper procedure will help an employee to negotiate their way out of a bad situation. So, if an employee wants to start a case for constructive dismissal compensation, it is strongly advisable to make use of all the procedures outlined above before approaching their potential employer.
