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Constructive Dismissal

Key Points

  • Constructive dismissal occurs when an employee accepts the employer’s repudiation of the employment contract and resigns in response. In such a case it will usually be a wrongful dismissal and may also be an ‘unfair’ dismissal.
  • If there is a wrongful dismissal, the employer can no longer enforce any of the terms of the contract against the employee, including post termination restraints.
  • The employee must resign in response to the breach and should let the employer know that it is the employer’s conduct that caused his resignation, although ultimately this is a question of fact for the tribunal.
  • The employee should not delay in resigning in response to the breach as this may indicate acceptance of the breach.
  • Brexit effect - unless otherwise stated, the position in relation to any EU legislation and decisions as set out in this card is as it was understood at the end of the transition period on 31st December 2020. For information on the status of EU decisions and legislation as of 31st December 2020 please see Statement on impact of Brexit on Emplaw Online content.

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