How To Prove Constructive Dismissal

Constructive dismissal, sometimes known as constructive termination or constructive discharge, is when an employee resigns from their position because they feel they have been a victim of a sudden and unfavorable change in the workplace environment. It leaves them feeling “pushed out” of their position with no other choice but to leave their job. 

While the resignation itself is technically voluntary, it often isn’t a genuine choice from the employee, as it follows a bout of difficult or unpleasant circumstances that creates the feeling in the employee that they may have no other choice but to leave the job. Read on to learn what constitutes constructive dismissal and how to prove you have experienced it.

Can You 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.

What Qualifies As Constructive Dismissal?

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.

How to Give Constructive Dismissal

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.

Frequently Asked Questions

What are the Requirements for Constructive Dismissal?

Most cases of constructive dismissal involve some kind of contract change, breach, or a drastic change in the workplace environment. This can lead to an employee handing in their termination letter but still pursuing a wrongful termination clause against their former employer.

What is a Constructive Dismissal Letter? 

Any termination of a position, whether initiated by the employee or the employer, should involve a termination letter of some kind. A letter detailing your intention to leave a company helps provide both a paper trail and a timeline of events for both parties involved.

Final Thoughts

Constructive dismissal is usually an unfortunate outcome for both parties involved. There are ways to avoid it, including checking that your chosen candidate will fit into your company and avoiding any hiring mistakes during the interviewing process to prevent these issues before they can arise.

For employers looking to avoid instances of constructive dismissal, be sure to check out ScoutLogic’s background checks to ensure you have the right person for the job.

David Garcia

David Garcia, co-founder and CEO of Scout Logic, is an industry leader in the bulk background check world. With his strategic acumen and expertise in the HR sphere, specifically in hiring, recruiting, legal compliance, background checks, and resume screening, he’s an invaluable asset and consultant.

David's counsel extends across the boards of ScoutLogic, YipitData, and Supplier.io, drawing from his impactful stints on the boards of Infutor and Avetta. With an extensive 25-year journey, he champions unparalleled B2B commercial leadership within data & analytics, significantly shaping the HR landscape.