(b) Constructive dismissal refers to the situation where an employer has made the position of the employee such that the employee has no other option than to resign. In other words the unreasonable actions of the employer force the employee to resign. Normally employees who resign deprive themselves of the right to make a claim for redundancy or other payments, but in the case of constructive dismissal, under s.136 ERA the employee is entitled to make a claim for unfair dismissal in spite of the fact that they actually resigned (Simmonds v Dowty Seals Ltd (1978)).
An employee may also be able to claim constructive dismissal where the employer is in breach of an implied term in the contract of employment (Gardner Ltd v Beresford (1978)) and in Woods v WM Car Services (Peterborough) (1982)). The action of the employer, however, must go to the root of the employment contract if it is to allow the employee to resign. In other words it must be a breach of some significance (Western Excavating Ltd v Sharp (1978)). If the employee does not resign in the event of a breach by the employer, the employee will be deemed to have accepted the breach and waived any rights. However, they need not resign immediately and may, legitimately, wait until they have found another job (Cox Toner(International) Ltd v Crook (1981)). |
