What is constructive dismissal?
Constructive dismissal is when an employer fires an employee without officially firing them. This is not a contradiction in terms! Firing an employee can cause an employer to face serious legal recourse. As a result, employers prefer to fire employees in a hidden way by so that employees get the impression that they are unwelcome and leave on their own without compensation. That is constructive dismissal.
Constructive dismissal is highly beneficial to employers – as long as they don’t get caught. Their executives leave empty-handed, without due compensation, and their employer gets to keep the money and considerations they would have owed them if they dismissed them outright. However, there is a reason there is an official legal term for these actions. These actions are officially recognized as illegitimate. This means that if you are the victim of a constructive dismissal that you have rights.
Legally speaking constructive dismissal can be defined as either:
- A single unilateral act by the employer that breaches an essential term of an employee’s contract
- A series of acts by the employer that, taken together, show the employer no longer intends to be bound by the employment contract.
Sounds straightforward, right? Unfortunately, it’s not. Constructive dismissal cases are extremely tricky. They are simultaneously very factual and very contextual. Legally, the truth is very nuanced. Constructive dismissal situations vary on a case-by-case basis and require both expertise and strategy to succeed. They also have an extremely short delay period before the claim is automatically forfeit.
An important part of any constructive dismissal case is that the executive or manager who has been constructively dismissed must not consent to the changes. Consent can be given in two main ways:
- Actively accepting the changes
- Not quickly objecting to the changes
Even a perfect constructive dismissal case can be destroyed in three main ways:
- If the executive or manager accepts the changes, they cannot later complain about them
- If the executive or manager waits too long, they may miss the legal delay period for taking action on complaints – making their complaint legally proscribed
- If the executive or manager waits too long, the law considers this tacit acceptance of the changes
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In short: the biggest (though by no means only) barriers to a successful constructive dismissal are time or inaction. Without a claim, an employee loses the legal right to complain or demand compensation for the wrongs done to them.
Due to the short delay period, it is imperative to get legal advice as soon as you see warning signs that constructive dismissal might be happening to you. For this reason and in these circumstances contact an expert constructive dismissal lawyer immediately to preserve your rights and assess your situation. Executives and managers can lose (and have lost!) their claims simply by not objecting to changes to their working conditions quickly enough.
Warning signs of constructive dismissal can include:
- Reduction in salary
- Change in benefits
- Change in bonus plan
- Reduction in title
- Change in rank relative to the organization
- Reduction in responsibilities
- Changes to your job description
- Change in working conditions
- Announcements that changes are coming
- Other situations where you feel something may be wrong
What to do
Get legal advice immediately from an expert constructive dismissal lawyer. Constructive dismissal is extremely complex and the delays for filing a claim are extremely short.
One of the strategic challenges with constructive dismissal is that it is difficult to know where you stand, difficult to figure out what to do, and the clock is always ticking. This requires knowledge, expertise & practical strategy to navigate.
If your employer has done nothing wrong and is not going to, then you generally shouldn’t take action. However, if you are being wronged, you need to take just the right steps to protect your interests and position yourself so that you can try to obtain a good result. It is necessary for you to know right away if:
- There is a case
- If it is or is not worth it for you to pursue
Not every case is worthwhile for you to pursue, even if you have a legal right to do so.
Legal advice should always evaluate your options and give you an honest and pragmatic assessment about:
- Whether any actions can be taken
- Whether the benefits of such actions will likely outweigh the costs
- What the best course of action is
If you have a case that will benefit you to pursue, then you need to have a discussion about what it is you want to achieve and evaluate whether that goal is realistic. Then your constructive dismissal lawyer needs to craft a customized strategic plan to navigate your personal situation and circumstances with the goal of gaining you a desired result.
This all needs to happen very quickly. The best way to do that is to contact a specialized constructive dismissal lawyer quickly, and have the information your lawyer will need to assess your circumstances, right at your fingertips.