Constructive Dismissal is a last resort strategy for employees that have not had their employment issues addressed or resolved fairly in their place of work. It is fraught with difficulty, heavily weighted against the employee, and notoriously difficult to win at an Employment Tribunal. In terms of working as a deterrent to protect the rights of employees to fair treatment in the work place it is ineffective. Why should this be the case?
Employees Claiming Constructive Dismissal
In order for a case to have even a slim chance of success an employee must be sure that their appeal follows the Breach of Contract Rule - that the issue raised goes to the root of their contract of employment. However, this is not often clear cut and the information available on the web and from advice agencies is more than a little ambiguous. Even where the case is relatively clear, as in some cases of discrimination or disability, there are other mitigating factors that prevent a successful outcome for employees in pursuit of justice in employment.
Employment Law Requirements
An employee must ensure that they follow the employer's, and employment legislation requirements prior to resigning. There is an onus on the employee to follow the company's grievance procedures in the first instance, except in exceptional circumstances where this might prove injurious to one or both parties. This in itself can be quite stressful, and there is no guarantee that the employer will be fair or sufficiently rigorous in their investigations. An employer must only show that any investigation conducted was reasonable in the circumstances, and there is a distinct lack of monitoring of the conduct of employers in this respect. There is no independent investigator or watchdog exercising effective quality control, although arbitration is available should the process break down.
Difficulties for an Employee
The difficulties encountered by employees will typically be about resources, which in the main will be around finance, support and guidance, health and well being, and the intrinsic inequity of their situation - being a light weight contender in a heavy weight bout. On the one side, there is the employer with their vast financial, legal, and manpower resources. On the other side, there is the spectre of an impersonal and intimidating bureaucracy that will deliver judgement and hear appeals, should they be allowed. In such circumstances it is easy for even the most secure of individuals to feel overwhelmed.
Support and Guidance
Ostensibly there is a wide range of legal, Para legal, and support services offering advice on employment issues. Sadly, though, when it comes to Constructive Dismissal cases, there is considerable reluctance to take them on - they are particularly difficult to win. Legal firms will review cases, for a fee, and assess the likelihood of success - they rarely accept such cases. Trade Unions have budgetary and political considerations, and in any case refer on to their legal specialists who seldom advise pursuing them. Para legal and support services (advice agencies) are intimidated by the prospect of such cases and refuse them almost routinely. They can't afford to waste time and effort on hopeless cases. The statistics clearly show that the success rate is negligible. An employment specialist working with the Citizen's Advice Bureau (CAB) commented that out of ten cases, he had only been successful in one instance.
Resignation - is it Worth it?
Resignation is a last resort and not one to be taken lightly. It will add difficulty to already straightened financial circumstances, and possibly have an impact on future employment prospects. A former employer might well view their employee as a 'thorn in their side', and a prospective employer may see such a person as a potential 'trouble maker'. There is no certainty that an Employment Tribunal will accept a case, and any compensation awarded - in the unlikely event of a case being successful - will not adequately compensate for the time and energy expended, or damage to health and family relations.
Deterrent or Disincentive?
Companies have tried and tested ways of dealing with cases of Constructive Dismissal. Financial Settlements, which offer a compromise, are frequently insubstantial and in many cases serve to mask blatantly unfair and appalling practices within the work place that remain unchallenged. They do little to protect the dignity and rights of those being mistreated by their employers, or recompense the resulting damage that can have far reaching consequences for employees and their families. Legal and advice professionals despair when presented with them, unless they are full-proof and cut and dried (rarely happens). Even if the case is successful it is often a pyrrhic victory. There are exceptions, but they generally prove the rule. Most specialists in the field of Employments Rights would urge extreme caution when considering this option.
Sources:
http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/Dismissal/DG_10026696
http://www.businesslink.gov.uk/bdotg/action/detail?type=RESOURCES&itemId=1073791208
Alister Gillies - Alister's background is in project development. He is trained in counselling and personal development, although his academic background is ...
Join the Conversation