Constructive dismissal

MagicSean

I was curious if a person could bring a case for both wrongful and constructive dismissal at the same time. Lets say a person was being put under pressure in work to such an extent that if they left they would have a good case of constructive dismissal. But before they can leave the pressure they are under results in them doing something which gives management the opportunity to dismiss them. Would a wrongful dismissal case cover the same aspects of the constructive dismissal or would they be limited in the remedies available to them because of the fact they did not leave?

Kosseegan

MagicSean wrote: »

I was curious if a person could bring a case for both wrongful and constructive dismissal at the same time. Lets say a person was being put under pressure in work to such an extent that if they left they would have a good case of constructive dismissal. But before they can leave the pressure they are under results in them doing something which gives management the opportunity to dismiss them. Would a wrongful dismissal case cover the same aspects of the constructive dismissal or would they be limited in the remedies available to them because of the fact they did not leave?

The two cannot run together. One is a resignation, the other is a dismissal. If a person has resigned they cannot be dismissed. If a person is dismissed they cannot resign.
In any event the burden of proof in a constructive dismissal is on the complainant to establish that the employers behaviour was so unreasonable that resignation was the only option. There is a high threshold to be reached.
In unfair dismissal the onus is on the employer to show that the dismissal was fair. Any oppressive behaviour will mitigate against the employer. The employee has a much greater chance of success in this situation.
Wrongful dismissal is a breach of contract remedy which must be pursued in the courts. The EAT will not deal with an action arising out of the same circumstances whether or not it is unfair dismissal or constructive dismissal if there is a court action in being.

jblack

MagicSean wrote: »

I was curious if a person could bring a case for both wrongful and constructive dismissal at the same time. Lets say a person was being put under pressure in work to such an extent that if they left they would have a good case of constructive dismissal. But before they can leave the pressure they are under results in them doing something which gives management the opportunity to dismiss them. Would a wrongful dismissal case cover the same aspects of the constructive dismissal or would they be limited in the remedies available to them because of the fact they did not leave?

Wrongful dismissal is for failure to adhere to notification periods, or in their absence a reasonable one will be implied.

Predalien

So you're saying someone does something, which leads to a disiplinary procedure, which leads to their dismissal? They wouldn't be able to argue constructive dismissal because they were actually dismissed, if they did proceed with a claim for unfair dismissal I suppose they could argue that the disciplinary procedure should have taken into account the difficult circumstances the employee had been put in whch led to the incident, but It'd be very difficult to make that case.

Procrastastudy

I would assume dismissals resulting from "disciplinary procedures" would be a large number of wrongful termination cases?

I'd also assume the use of these procedures could be a constructive dismissal if they are used to bully someone. Something I've seen done on more than one occation.

nooneworker

Prior to taking a case of constructive dismissal the person would need to have worked with the Hr department and even open a grievance procedure case with the company.

The company maybe looking to frighten the person into given in their resignation rather than then dismissingthem

MagicSean

I was just curious if there was a difference in the remedies available. Could someone who tried to stick it out end up suffering because of it.

Kosseegan

Predalien wrote: »

So you're saying someone does something, which leads to a disiplinary procedure, which leads to their dismissal? They wouldn't be able to argue constructive dismissal because they were actually dismissed, if they did proceed with a claim for unfair dismissal I suppose they could argue that the disciplinary procedure should have taken into account the difficult circumstances the employee had been put in whch led to the incident, but It'd be very difficult to make that case.

If the employee claims for unfair dismissal the employer has to justify the dismissal. The burden of proof is on the employer. Large numbers of employees succeed on the bases that either fair procedures were not followed in the disciplinary process or that dismissal was disproportionate to the offence.

Kosseegan

GCDLawstudent wrote: »

I would assume dismissals resulting from "disciplinary procedures" would be a large number of wrongful termination cases?

I'd also assume the use of these procedures could be a constructive dismissal if they are used to bully someone. Something I've seen done on more than one occation.

It would have to be shown that it was so bad that the employee had no reasonable option but to resign.

Kosseegan

nooneworker wrote: »

Prior to taking a case of constructive dismissal the person would need to have worked with the Hr department and even open a grievance procedure case with the company.

The company maybe looking to frighten the person into given in their resignation rather than then dismissingthem

It is a question of fact in each case whether the conduct was so oppressive as to force a resignation. One of the factors to be taken into account will be the extent to which the employee tried to mitigate the oppression. If a person was being bullied by one individual, it would generally be expected that any complaint or grievance procedure would be availed of. In some cases the bully might control the grievance procedure. A lot of constructive dismissal cases are usually taken where the bullying gets worse in response to a complaint.

Kosseegan

MagicSean wrote: »

I was just curious if there was a difference in the remedies available. Could someone who tried to stick it out end up suffering because of it.

There is a major difference. Wrongful dismissal is a breach of contract action in the courts. Damages might be very small and limited to the notice period.

Constructive dismissal proceeds in the EAT and damages of up to a years salary can be awarded.

If there is oppressive conduct resulting in stress and illness a personal injuries action can be taken possibly in conjunction with breach of contract.
If a person is able to stick it out then they have no case for constructive dismissal. That only arises when the conduct of the employer is unbearable.