Hello again, constructive dismissal occurs when the following two elements are present:
- Serious breach of contract by the employer; and
- An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.
A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).
Whilst the sole act of not giving you a contract itself is unlikely to be serious enough to justify constructive dismissal, if as a result you are unable to perform your job properly, you are left ignored, isolated, without any work to do, etc then all these elements could add up to make this into a constructive dismissal situation.
The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
However, do note that when claiming constructive dismissal you would only b entitled to claim loss of earnings resulting from the loss of hat job. So if the remuneration package is about the same and all you are missing out on is some benefits on top of that, you need to seriously consider whether it is worth taking this to tribunal paying all the fees and taking the time to sue the employer for what may be not a very big payout.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?