HR Update - Don't dismiss grievances

Recently, we have had several nursery owners contact us to find out if an employee can make a claim for constructive dismissal.

What is constructive dismissal?

Constructive dismissal is where an employee terminates their employment in response to their employer's treatment of them.

Although there has been no actual dismissal, the treatment is sufficiently bad that the employee is entitled to regard themselves as having been dismissed.

What does the employee have to prove?

To prove a constructive, unfair dismissal, they must show that:

• the employer has breached the contract

• there is a significant or fundamental breach of contract and -

• they terminated their employment in response to that breach and did not delay resigning.

How easy is it to show constructive dismissal?

A constructive dismissal is far more difficult to prove than employees often think.

First they must prove a fundamental (rather than minor) breach of contract by the employer.

The employee must also show that their decision to terminate their employment was in response to the breach.

An employment tribunal will need to satisfy itself that the employee did not delay too long in resigning. A tribunal will usually expect an employee to have tried to resolve the complaint through the grievance procedure before resigning.

How to avoid constructive dismissal claims

Constructive dismissal claims are usually based on a grievance that the employee has. It is therefore important to invite the employee to a grievance meeting, giving them the right to be accompanied. Listen to what they have to say and then respond to the grievance in writing.

Getting to the bottom of the grievance is the key to reassuring the employee or, if they are determined to leave, weakening any potential tribunal claim they may bring.

So the moral of this story is to always follow your procedures and, whatever you do, don't ignore a grievance.

Jacqui Mann is managing director of HR4 Nurseries www.hr4nurseries.co.uk.