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Employees choose to leave their employment for all sorts of reasons. The working relationship may have become uncomfortable or broken down irretrievably. In those circumstances working during a notice period is not an attractive prospect. Fear not – there may be a quick way out for you.
Employment terms are not only expressly stated in your employment contract. Terms also exist under statute and through custom and practice. The terms that arise from custom and practice are known as ‘implied terms’. These terms do not appear in your contract but are in force during your employment.
Implied terms are:
Duty to provide work
Duty to pay wages
Duty to provide reasonable care
Duty of mutual trust and confidence
Duty to provide proper information to employees
Duty to provide accurate references
If an employer fails to adhere to the above obligations or those in your contract, they may have breached the agreement, which could entitle you to dismiss yourself constructively.
Section 95(1)(c) of The Employment Rights 1996 states that dismissal occurs if an employee resigns in circumstances which entitle them to terminate the contract because of the employer’s behaviour or conduct.
Where there is a repudiatory breach on the part of the employer, this essentially voids the contract between you and them, freeing you from your obligations, i.e. Having to give notice.
Some examples of an employer’s repudiatory conduct include:
Failure to provide a safe system of work
Making unjustified accusations about an employee
Publicly reprimanding an employee
A breach of contract warranting constructive dismissal may be one or several unrelated incidents.
As a remedy for breach of contract, you are entitled to be put in the position you would have been had the contract been performed, i.e., you are still entitled to your notice pay and benefits up until the expiry of the notice period even though you are not required to work that notice.
You will no doubt appreciate the benefits of identifying a potential breach of contract on the part of your employer. However, it is not only a breach you will need to establish before succeeding in a constructive dismissal claim. The test for confirming whether a constructive dismissal has occurred is set out below:
Has your employer committed a serious breach of the contract (implied or express)?
Has that breach caused your resignation?
Did you unreasonably delay in submitting your resignation?
Despite the issues you have with your employment, you may feel the working relationship is still salvageable. Therefore, you should submit a formal grievance to your manager before handing your notice in to allow them to resolve your complaint.
Submitting a grievance is not viewed as a ‘delay’ in respect of point 3 above. Therefore, you would still be able to claim constructive dismissal if the outcome of the grievance is not satisfactory. A tribunal would not criticise you for allowing the grievance procedure to proceed before dismissing yourself.
An employee, as noted above, is entitled to treat the contract as void if an employer has breached a term in the contract. This applies to restrictive covenants also. However, caution is needed when treating restrictive covenants as void. If you resign, claim constructive dismissal and then go off to work for a competitor or attempt to poach clients or colleagues, you are at risk of your ex-employer bringing an action against you for your breach of contract. You should be aware that constructive dismissal will not be established until/unless a Tribunal investigates it. You must be confident that you have satisfied all the elements required for a constructive dismissal claim before deciding to act against a restrictive covenant, thus limiting action against yourself early.
Deciding upon what conduct amounts to a repudiatory breach can be tricky; therefore, you should seek legal advice before resigning to ensure your case’s prospects. Leaving your employment without another job in place could have profound financial implications. You do need to make an informed decision because of your circumstances.
Many constructive dismissals are also deemed unfair, meaning you may be able to claim more than your notice period pay and benefits. To ensure you have the best chance of recovering all the compensation, maybe you should seek legal advice as soon as possible to ensure your claim is lodged within the applicable limitation period.
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