Constructive Dismissal Appeal Process
Although many employees may feel that their working conditions are intolerable, not all cases of constructive dismissal can be successfully challenged in court. The burden of proof lies with the employee, and to prove that their employer’s conduct constituted a fundamental breach of their contract of employment, the employee must demonstrate that they were left with no choice but to resign.
To do this, the employee must show that their employer’s behaviour caused them to feel that they had to resign in order to protect their interests, health and wellbeing. This is a difficult proposition for any employee to demonstrate.
As a result, this type of claim is not something that should be embarked upon lightly. Even when it is successful, it can have significant long-term implications for the individual. It can create a black mark on their employment record, and it can cause employers to question whether they have other employment options.
This is why it is so important for individuals to be aware of their rights and to speak out when they feel that their workplace is not a safe and healthy place to work. It is also vital to document any incidents of misconduct and take steps to seek legal advice as soon as possible.
The Constructive Dismissal Appeal Process
It is also important to remember that to successfully assert a constructive dismissal claim, an individual must have first raised their concerns with their employer and given them an opportunity to address the matter informally before making a formal complaint. In addition, they must have tried to resolve the situation internally before deciding to resign in order to assert this claim. Finally, the individual must not affirm their position in the interim by remaining at work or taking steps to terminate their contract, as this could be construed as an acceptance of the employer’s breach and thus affirming the right to continue under the terms of their employment.
A recent EAT judgment has clarified the law surrounding these issues, stating that an employee must only affirm their position in relation to the employer’s breach after they have resigned and not before. This will prevent the employer from claiming that the employee has accepted their behaviour and affirmed their right to continue under the terms of their contract. The length of time that an individual takes to resign is also not considered to be a relevant factor in this case.
An experienced employment lawyer can help individuals understand their rights and the legal requirements surrounding constructive dismissal claims. They can also advise on the best way to proceed, evaluating their case and determining what the likely outcome would be. They can also offer support throughout the process, which can be a stressful and lengthy experience. They can also assist with submitting a complaint to the appropriate agency – depending on where you live, this may be a labor board or human rights commission. In some cases, these agencies can investigate a workplace mistreatment claim and provide redress if necessary.
