A Reflection on Case Study Three: ‘Brian’
Constructive dismissal claims are amongst the most difficult types of cases to take to an Employment Tribunal. Such cases require high levels of knowledge; employment advisers will often argue amongst themselves about constructive dismissal cases. A substantial difficulty with any employment case is being able to secure supporting evidence. It is very rare in ET cases that someone walks in with comprehensive and complete evidence; and how do you get witnesses, people who are willing to stand up and testify against their own employer?
Constructive dismissal cases are also extremely painful for the claimant. We often find people folding at an early stage because of the stress of taking a case. On the Citizens Advice information system there are big red warning triangles to emphasise the difficulties inherent in advancing a constructive dismissal case. Firstly, the claimant needs to understand what the term ‘constructive dismissal’ actually means. To successfully argue that s/he has been constructively dismissed, a claimant will have to show a fundamental breach of one of the ‘express’ or ‘implied’ terms in the contract. To effectively proceed, Brian would have needed to understand the written terms of his contract of employment. These would form the basis of the ‘express’ terms of his contract. (Whilst there was an obligation on Brian’s employer to provide a written statement of the main terms and conditions of his employment, we cannot tell from the case study if he ever received these.)
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