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Have you been forced to resign – Constructive Dismissal? – Employee Rights/ Labour Relations



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Your resignation is forced when, as an employee, you are made to
feel that you have no other choice but to resign. These types of
forced resignations are referred to as ‘constructive
dismissal
‘.

To establish that a constructive dismissal has occurred, you
must prove that your resignation was forced, or that you had no
choice but to resign due to unacceptable or unlawful behaviour by
your employer.

Both employees and employers should understand this aspect of
employment law and what constitutes constructive dismissal to
ensure they abide by their rights and obligations. We act for both
employees and employers and this article is written from the
employee perspective.

This area of employment law is niche and you should get advice
from employment lawyers about your matter.

Forced Resignation

The onus is on you as the employee to prove you did not resign
voluntarily, and that your employer forced your resignation.

A forced resignation occurs when an employer has threatened to
terminate your employment if you refuse to resign.

It can also be argued that under these circumstances that even
if you had chosen to resign, the resignation was not voluntary
because your employers’ intent was to bring your employment
relationship to an end.

Thus, in this situation, had the employer not given the
ultimatum you would not have resigned.

In some instances employers may offer you to resign to spare you
embarrassment or safeguard your employment history with a black
mark of termination. This is irrelevant and still considered a
constructive dismissal.

On the other hand, as an employee, you must be mindful that a
resignation would not be viewed as forced resignation if you opt to
resign before your termination. This is colloquially known as to
“jump before you are pushed”.

Special Circumstances – Constructive Dismissal

A special circumstance to this in constructive dismissal cases
are when you, the employee, have resigned in the heat of the moment
or you have resigned under extreme pressure.

If you treat the resignation in the heat of the moment as a real
and voluntary resignation, you may still be found to have been
constructively dismissed if the employer did not give you a
reasonable period of time to reflect on whether you actually had a
real intention to resign.

You also may be found to have been constructively dismissed if,
after you have taken back your resignation in the heat of the
moment your employer refuses to take you back.

When You Have No Choice But To Resign

This is when you decide you have no other choice but to resign.
This would arise where you had no choice in the matter as your
decision was in response to your employer’s unacceptable
behaviour.

Examples of unacceptable behaviour by your employer could
include:

  • Your employer makes changes to your employment terms and
    conditions resulting in a decrease in your pay

  • Demotion

  • Ignoring or failing to stop or prevent your unlawful
    treatment

  • Changes to your work hours

  • Relocating your employment location (for example, workplace
    bullying or harassment)

Employer Risks If Constructive Dismissal is Proven

Employers are exposed to the same risks they’d normally be
exposed to if they’d directly terminated your employment. This
includes you being able to make an unfair dismissal claim or
general protections claim against them.

There are stark differences between an unfair dismissal claims
and general protections claims. You will need a lawyer to advise
you whether your employment termination is an unfair dismissal or
general protections claim.

Generally speaking successful general protections claims can see
the employee awarded with more compensation than an unfair
dismissal claim and employers need to get advice from an
experienced lawyer.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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