Sometimes, a resignation is not just a simple resignation. Generally speaking, an employee will leave their employment for one of a few standard reasons:
- Their own choice, through resignation (no “fault” on either side)
- Being dismissed for misconduct or performance (“fault” on the employee’s side)
- Being terminated as a result of redundancy (No “fault” on either side)
What can happen sometimes, though, is that an employee resigns because they feel that they had no choice but to resign. While on its face this might seem like an open and shut case of the employee choosing to leave, behind the scenes there could be an unfair labour practice or a difficult environment that made the employee feel like they could not solve their issues internally, and therefore had no option but to resign.
If this happens, it is potentially an unfair termination and may result in a Personal Grievance. This is called a “constructive dismissal” because it can be interpreted that the employer “constructed” (or forced) the resignation.
The whole idea of establishing fair processes is to prevent unfair dismissals, but this is one exception where an unfair dismissal can possibly occur without the employer even knowing why it has happened. Process is, however, very relevant to any situation of constructive dismissal as it will help establish the reasonableness of the employer’s conduct.
The employee alleging constructive dismissal is effectively saying that they felt that they had no choice but to resign. Therefore, it is unfairness that is subjective, in the mind of the employee. The employer should be aware of any situations and types of behaviours in the workplace that can cause employees to feel this way, and actively manage those environments to prevent employees reaching a level of frustration where they might solve their problems by resigning.
There is also, however, an objective element to this. If an employee’s reaction to the conduct of their employer, or the situation they find themselves in, is unreasonable, and this leads to their resignation then it is unlikely this will amount to a constructive dismissal.
There are basically three ways a constructive dismissal can occur:
- An employer can openly force an employee to resign by saying or implying “you should resign or you will be dismissed” or “maybe you should resign”. This can happen for example in a disciplinary hearing, where an employer is pushing hard for a particular outcome, or even by trying to be nice to an employee so that they don’t have a dismissal on their record! It can also include an indirect threat such as “you wouldn’t want a dismissal on your CV” or “there’s no future for you here”.
- An employer deliberately behaves in a way that will pressurise the employee to resign. This can be through excessive workloads, unreasonable shifts, repeatedly refusing reasonable requests, allocating meaningless (or overly complicated) work, excessive micromanaging, overlooking an employee for an obvious promotion, giving the “cold shoulder”, cutting off communication, exclusion from meetings etc.
- An employer can act in such a way as to destroy the working relationship for example by breaking promises, breaching the employment contract, or treating the employee unfairly so that they feel they cannot continue working there.
It’s important to remember that the actions and behaviours of any employee can create this environment – not just a manager. If another employee is making things difficult for an employee, (including bullying, discrimination or harassment etc) and the employer does not act to solve this, the employer is at risk of a constructive dismissal. But the employer has to know that the situation exists, or at least had information that would create an expectation that they act to address the situation.
It can be a single event or an accumulation of a lot of small actions that lead to an employee being forced to resign. However, not everything that upsets an employee is sufficient grounds for resigning and putting in a Personal Grievance.
An employer can of course start reasonable disciplinary proceedings or a performance management process, and if an employee chooses to resign rather than face that, this is very unlikely to be grounds or a claim of constructive dismissal.
An employer can request that an employee does reasonable tasks (i.e. the employee knows how to do them and it is safe for them to do so) and even if this is not work they normally do, this is not enough reason to resign.
In addition, an employee who makes no reasonable effort to solve a minor issue, but resigns instead, will find it very difficult to establish that the resignation was the reasonable response to this issue.