If You Resign, How Can It Be A Dismissal?

If You Resign, How Can It Be A Dismissal?

As Stella English, a former winner of the popular TV business show The Apprentice, and Alan Sugar exchange allegations and insults at the East London Employment Tribunal, you may be confused not only by the dispute between the parties but also by the legal situation jargon used.

Ms. English has filed a constructive dismissal lawsuit. But how can it be a termination when she actually resigned from her position? What does constructive termination mean, and is it the same as abusive termination?

A constructive dismissal occurs when a person is forced to resign against their will because the employer did or failed to do something very serious. For example, you might be entitled to leave and request a constructive dismissal if your employer:

You have been forced to resign for no reason you intentionally did not pay or paid less than you should have paid (i.e., not just because of a payroll error)

Forced you to accept an inappropriate change in your job role, e.g., a transfer to another job many miles away, without your consent

Threatened with being fired if you don’t quit

You have been subjected to bullying or harassment

Ignored your complaints about being bullied or harassed at work or told you not to make a fuss.

The behavior of the employer must be so serious that the employment contract is violated. It could be one big incident or a series of smaller incidents that add up to make staying in the job unbearable. The legal jargon for such behavior is a “void breach,” justifying a belief that the contract has effectively been nullified.

While not technically the same as an abusive dismissal, conduct amounting to an unlawful breach of contract is also likely to be “unfair” in the common sense of the word.

A scenario that often comes to my mind is the “Do you want to quit or rather be fired?”. Type of conversation. And certainly, put like that, it would most likely lead to a lawsuit for constructive dismissal. However, this has led many employers to fear that even the mere suggestion that an employee might be better suited for a different job or role would cause anger. This fear is exaggerated. Nevertheless, such sensitive conversations should always be conducted with good reason (e.g., as part of a performance review or a restructuring that could lead to layoffs), not out of the blue. They should be carefully planned and executed with sensitivity.

To be successful, an action for constructive termination must demonstrate that the conduct was sufficiently serious to warrant termination, and thus such termination should normally be immediate. If not, the employer can argue that the employee tacitly accepted the role change or that behavior was later objected to. But even if an employee doesn’t resign immediately, there remains a risk that they will do so after another incident of unacceptable behavior that will be seen as the “last straw”. Remember that a series of less serious incidents can add to unfair dismissal. Therefore, a delay in withdrawal is not always fatal for the chances of success of a lawsuit.

In all these cases, it boils down to losing trust between the parties. If the employer and employee no longer trust each other, the employment contract is jeopardized, and there is more of a claim for protection against dismissal. You only have to read the reports of acrimony between Mrs. English and Lord Sugar to understand.

To avoid such a situation, employers must behave in a reasonable and honorable manner towards their employees, seek to negotiate and agree to changes rather than impose them, and take any complaints of harassment or bullying seriously. Employers who treat people fairly in the first place are less likely to encounter such problems, and when false claims are made, they are more likely to defend themselves successfully.

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