Constructive dismissal

How to Avoid Constructive Dismissal Claims

A claim for constructive dismissal is generally filed by an employee when they feel that they have had to leave their job as a result of the behaviour of their employer.

If the employee can prove that their employer’s behaviour was a fundamental breach of the contract and the employee felt they had no other option but to resign from the company then, the chances are, the employee will have a pretty solid case for constructive dismissal claim.

No employer wants to be faced with a constructive dismissal claim and so, in this article, we take a look at some of the ways in which an employer can work towards avoiding such claims and, subsequently, saving himself a significant amount in compensation pay-outs.

Good Relationships

It goes without saying that a good working relationship between employer and employee is going to be far more productive than a poor working relationship but not all employers take this view. However, it’s worth bearing in mind that without your employees you would have no business and so it bodes well to treat your staff properly.

Make it clear what your expectations of them are but also listen to their views, opinions and ideas.

Respect works both ways and, once your employees realise they have your respect, they will feel far more motivated and worthwhile.

You should also discuss any problems which have arisen within the company openly with your staff. Your honesty and the fact that you have confided in them will encourage them to work together as a team and hopefully find a way to rectify the problem.

Setting Standards

Set clear, concise standards and employment law policies and procedures that all employees can understand and adhere to but don’t make those standards unreasonable or unreachable. Everyone needs structure and when employees are aware of the goals they should be working towards there is far less likelihood of issues arising with problematic employees.

Procedures

Ensure that everyone is fully aware and understands the disciplinary and grievance procedures in the workplace and make sure that managers, or those who will be dealing with these issues should they arise, are in a position to carry them out in a decisive, sensitive and competent manner.

Policies

Make sure that your employment contracts are clear all employees have access to a clearly written handbook of the company’s policies, that way everyone knows where they stand from the get go. It may also prove advantageous to go through the policies once a month during staff meetings, especially when new employees have joined the workforce.

A comprehensive, well written set of policies will also give you more leverage in court should a claim arise by showing the judge that you do know what you are doing, that you run your business correctly and that you have your employees’ best interests at heart.

Be Diligent

Don’t allow yourself to rise to the bait if an employee tries to provoke a reaction out of you. Often disgruntled employees who are fed up with their jobs will try to get a rise out of their employer in the hope that they can use his knee-jerk or angry reaction to their advantage.

Keep calm, discuss the issues with the employee if possible and try to find ways to solve the problem. A screaming match or rash decisions are not going to help make matters any better and could end up costing the employer far more than just the loss of a problematic employee.

Don’t be Overcritical

Naturally, if an employee is producing work that doesn’t measure up to the standards of the company or the rest of the workforce then the employer has the right to point this out but this should be done in a fair and reasonable manner.

Putting an employee down or being continually overcritical can seriously undermine an employee’s confidence and it is doubtful that a frightened, hurt or humiliated employee will be any more able to produce a higher standard of work. It can also need to a potential claim for harassment or discrimination.

This kind of action will also give an employee good reason to start considering a claim against you.

Change Job Duties Properly

If you need to make changes to certain aspects of an employee’s job duties then discuss these changes with the employee first.

Do not just assume that the employee will be willing to accept those changes and put them in place without approaching the employee in the first instance.

Be Reasonable

Treat your employees in a fair and reasonable manner and make sure that you take measures to ensure your employees’ health, welfare and safety at all times.

Do not carry out actions which may result in the employee being put in a harmful position, whether physically or mentally.

It’s good to Talk

If a problem arises don’t just ignore it, take the time to discuss the issues with the employee who has the grievance.

Mediation is a good way to get to the root cause of the problem and to begin putting measures in place to start dealing with the problem and may even stop the employee from handing in their resignation.  There is a growing recognition of the importance and value of mediation in the employment law context.

Even if this is not the case and the employee does take their case to a tribunal, having put mediation in place will show the judge that you had taken the correct steps to try to rectify the problem.

It is also worth remembering that a constructive dismissal scenario can arise not just in the context of an unfair dismissal claim, but can also apply in a breach of employment contract scenario, otherwise known as wrongful dismissal and can also be heavily linked with discrimination or whistleblowing issues. This is one of the most complex areas of employment law and almost always worth getting good employment law advice at an early stage but even better to get training to understand and avoid claims wherever possible.