An employee may treat himself (or herself) as constructively dismissed if you (as his employer) have committed a serious or fundamental breach of contract.
For constructive dismissal:
- there must be a breach of contract by the employer;
- the breach must be sufficiently serious to justify the employee resigning;
- the employee must leave in response to the breach; and
- the employee must terminate the contract without undue delay.
Following the introduction of the new minimum statutory disciplinary and grievance procedures in October 2004 (see Discipline and grievance, HR18), an employee who believes that his (or her) contract has been fundamentally breached by the employer must nevertheless raise a grievance before taking the matter to an Employment Tribunal. Failure to raise a grievance, at least 28 days before submitting a complaint, will result in the complaint being thrown out without a hearing.
It is for an Employment Tribunal to decide what amounts to a fundamental or serious breach of contract. Breach of a written term - such as a unilateral decision to reduce an employee's pay, without his consent - will almost certainly be held to be fundamental. So will a breach of the implied term of mutual trust and confidence (see question 6). This includes such things as singling the employee out for unfair treatment, failure to investigate grievances or harassment allegations, failure to prevent bullying, undermining the employee, etc.
