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Basically you are able to claim constructive dismissal if you have left your position without notice by reasons of the employer's conduct. In reality this means a confuct which constitutes a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.
This can be further broken down by looking at three points which must exist if constructive dismissal is to be claimed:
The following elements are needed to establish constructive dismissal:
Repudiatory breach on the part of the employer. This may be an actual or anticipatory breach, but must be sufficiently serious to justify the employee resigning.
An election by the employee to accept the breach and treat the contract as at an end. The employee must resign in response to the breach.
The employee must not delay too long in accepting the breach, as it is always open to an innocent party to "waive" the breach and treat the contract as continuing (affirmation) (subject to any damages claim that they may have).
Repudiatory breach - On your facts it would appear that your employer may have breached her implied obligation to provide you with a suitable working environment insofar as their conduct amounts to unacceptable behaviour. In addition they must "reasonably and promptly afford a reasonable opportunity to its employees to obtain redress of any grievance". Given there have been a series of events, have each been properly investigated and a resolution sought? If not there could be a further breach here. Finally, it appears at the very least that they have breached their obligation of "mutual trust and confidence" which means they have conducted themselves in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee"
Election to resign and not waiving - Although these issues have been ongoing, you will not be deemed to have "waived" their breach of contract if you are resigning because of a "last straw" incident. A breach of the implied obligation of trust and confidence may consist of a series of actions on the part of the employer which cumulatively amount to a breach of the term, though each individual incident may not do so. In particular in such a case the "last straw" need not itself be a breach of contract; the question is whether the cumulative series of acts taken together amount to a breach of the implied term. This is a long held principle of common law.
As for damages, the starting point for a claim for damages for breach of contract in a constructive dismissal claim is the same as that for any other wrongful dismissal claim. The principle is that the employee should be put in the financial position they would have been in had the contract been performed lawfully.Therefore, presuming that the employee resigned without notice, the measure of damages will usually be the value of their net remuneration package for their contractual notice period.
If you are intended to act, then you must resign fairly quickly. But before you do so you must seek advice from a solicitor who can look at your position in detail.
I can put you in touch with someone if you cannot find someone suitable.
Do you have any further questions?
Thank you. I have been trying since yesterday afternoon to speak with a solicitor without any luck - (my employer seems to have fingers in many pies), hence my question to Just Answer. All sound advice - I have been invited to an investigatory meeting which I guess is the first step. I will remain off sick until I can gain some expert advice. Would be grateful for a recommendation.
Karen South at KPM Solicitors - she's on [email protected] or 0207(###) ###-#### ***** she is unable to help personally she will be able to direct you in house to someone who can.
Very best of luck. If you are happy with my response, I would be grateful if you could rate and close the question.
All the best