An ex-employee has claimed “constructive dismissal” – now what?! | bossed

Updated: Jul 11, 2020

No employer likes to receive notice of a personal grievance, let alone a constructive dismissal which claims you forced resignation from an employee. How you initially react will set the tone for the entire proceeding, so, what should you do first?

Don’t Panic

In many situations personal grievances for constructive dismissal can be defended or settled quickly. The former employee has the burden of proof in this situation; they need to show through their claim that a breach of duty on the part of the employer occurred, and was serious enough that it was reasonably foreseeable the employee would resign as a result.

Understand what constructive dismissal is and is not

A resignation that was influenced or coerced by an employer and not considered voluntary by the employee could be considered constructive dismissal. At least one of the following set of circumstances would need to be present and would need to have led to an employee’s resignation;

  • An employer followed a course of action and behaviour, with the deliberate intention of, causing the employee to resign.

  • An employee was given a choice to a) resign or, b) be dismissed by the employer.

  • An employer breached their duty of care for an employee causing them to resign.

A resignation would not be considered constructive dismissal if;

  • An employee had communicated a clear intention to resign.

  • The resignation was voluntary.

  • The resignation is initiated by the employee, not the employer.

Review the evidence

In order for a claim to be upheld, two questions need to be answered from the evidence;

  • Was there a breach by the employer that caused the employee to resign?

  • Was there a breach that was significantly serious enough that it was foreseeable that the employee would resign?

Respond to the claim

In many situations a claim of constructive dismissal can be settled quickly. You will need to respond to your former employee with clear and constructive communication to defend the claim. Doing this on your own, without good advice and support, can be difficult and potentially cause further damage and disruption to both employer and employee.

Employment law is complex to navigate without experience. At bossed we have a team of Employment Relations experts that will keep interactions in these cases professional and effective, increasing the likelihood of a swift resolution.

If you find yourself facing a personal grievance for constructive dismissal from a former employee, don’t panic, call us at bossed. We will provide you with an initial free consultation, and solid advice around what you can do next.

Call us today on 0800 bossed

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