Constructive Dismissal – the last straw

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A properly managed disciplinary process or its outcome cannot amount to a serious breach of contract.

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A constructive dismissal claim can arise where an employee feels they have been so badly treated by an employer they are entitled to resign and be treated as though they had been dismissed.   There must, on the part of the employer, be a repudiatory breach of contract and there must be a causal link between that breach and the resignation. 

The breach by the employer can be one incident leading to the employee handing in their resignation or a series of events, the final incident can be in itself insubstantial but is nonetheless sufficient to render the whole series of incidents as a breach of the implied term.  This is known as the last straw doctrine.

Examples of a fundamental breach of contract are:

  • A substantial and deliberate reduction in pay
  • Unilateral variation of the employees job or status
  • Failure to provide a safe system of work
  • Breach of mutual trust and confidence

However, a properly managed disciplinary process or its outcome cannot amount to a serious breach of contract, or the “last straw” in a series of incidents that could justify a resignation.  

Even if the employee may disagree with the outcome or feel that they have been treated unfairly, an objectively fair process cannot be relied upon as the basis for arguing constructive dismissal.  Therefore being placed on a final written warning, after fair ACAS process has been followed, does not amount to a constructive dismissal and if it could, it would of course render the ACAS disciplinary process a somewhat pointless exercise. 

You must remember to carefully follow the ACAS guidance when addressing disciplinary and grievances in the workplace. 

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