How To Prove Constructive Dismissal

Constructive dismissal is when an employee resigns because they feel they have no choice but to do so, having been put through some unwanted or unsavory changes to their working environment or contract. 

Under US employment laws, proving that constructive dismissal has occurred is solely down to the employee; they must provide evidence that the termination came from a breach of contract on the employer’s end, whereas the employer must only prove that the termination was voluntary and not forced. This is most easily done by having a secure “paper trail,” documenting communications and changes or evidence of attempts towards resolution.

Many circumstances in the workplace lead to employee discontent and subsequent dismissal. Some of these include:

Bullying or harassment

If an employee is subject to bullying or harassment, they are likely to pursue a wrongful termination clause. This is especially true if the issue is highlighted, disregarded, and left unresolved by the employer either through communications with the affected parties or, if more serious, through firings.

Sudden wage decrease

If subject to a sudden wage decrease for any reason, the employee may seek constructive dismissal, especially if this was not previously communicated to them, either verbally or on paper.

Unexpected demotion

Similar to a sudden wage decrease, if an employee finds themselves with a sudden lack of responsibility, hours allotted, pay, or status, they may leave and pursue a constructive dismissal, having “lost” what they had become used to being their job.

The easiest way to give constructive dismissal is to communicate openly and honestly with your team and document the steps that have brought you to this position. For example: 

Try resolving the issue

Usually, before an employee terminates their contract, they will try to solve the issue – whether informally or formally, either verbally or in writing. If the issue remains unsolved, you are within your right to provide constructive dismissal. 

Research, gather proof

Having evidence to back up claims is a must for both parties involved. Whether that’s the employee attempting to prove that a wrongful termination has occurred or the employers trying to prove that the termination was consensual and voluntary, there needs to be physical and factual evidence to the matter in case the issue goes further than internally.