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Constructive dismissal and your rights.

February 15, 2013

Constructive dismissal picBefore beginning with the post, I would like to mention a recent case that has prompted me to write about it. One of my acquaintances has resigned from his job as Infrastructure Manager with an IT firm. He was asked to relocate to company’s another office in a distant town. Unwilling to do so, he resigned from his job. Now feeling that the employer wasn’t justified in changing his work location, which forced him to resign; he is considering the option of claiming constructive dismissal. Though he is still making his choice, this situation has made me think – Does every inappropriate action or move of employer can be termed Constructive dismissal? If not, then what is employee’s option in these cases?

In understanding, when an employee resigns or leaves his job due to an inappropriate conduct of his employer, it is termed constructive dismissal.  Some of the examples of such a situation are:

–          Changing the work location of employee. ( as in the case above)

–          Reducing the remuneration or benefits of the employee.

–          Workplace harassment.

 

What is NOT Constructive dismissal? (few cases)

 The discussion is based on the situation mentioned above:

Change in working hour or work location –   An employee can be asked to relocate if the employment contract or Appointment letter contains a clause where the employee can be transferred to different location or company branches, depending upon the nature of his job of company requirement. But in these situations, the employer has to give prior notice and make necessary arrangements.

Reducing remuneration or benefits – Any unreasonable change or reduction in employee compensation or benefits is uncalled for. But at times it becomes mandatory for employer to increase the share of employee’s statutory deductions due to changes in state or statutory laws. Similarly, a slight and insignificant variation in benefits or bonus plans is not considered constructive dismissal.

Workplace Harassment – Workplace harassment, bulling, discrimination, negative criticism, humiliation etc can seriously make work environment difficult and hostile for an employee. But if employer is taking necessary measurement to resolve these issues and is working on your grievance, constructive dismissal is invalid claim against employer.

Employee’s choice

When faced with an unfavorable situation at workplace, employee has a choice to quit or take it with employer to find a mutually beneficial solution.

  1. Your employer cannot force you to relocate unless it’s mentioned in your employment term. If the decision is in accordance to your employment agreement and employer is willing to make necessary arrangements and adjustments, you can accept the move as new opportunity. In certain cases, like non-existence of position at current location, relocating an employee to new location is the best choice can offer to the employee in concern. Still, if you are unwilling to relocate due to personal or health reasons, try to work on a win-win solution with employer.
  2.  In employer has made any unfavorable change in your compensation or benefits, understand the cause and effect.   Alteration in compensation or benefits is considered serious constructive dismissal except if the change and effect is too insignificant.
  3. Any case of harassment, discrimination, criticism etc must be brought to employer’s attention at the earliest. It’s the responsibility of employer to resolve such matters as early as possible.

There is no doubt to the fact that some situations make it difficult to continue with the job, the best choice in these circumstances is to consider an expert’s opinion before taking an action. Every claim of constructive dismissal doesn’t always work in employee’s favor. While dealing with matter of constructive dismissal, an Employment Tribunal(ET) or Labor Court considers a few aspects like, did the change in employment condition breached the employment terms , was the effect of change significant  , was there a notice of change provided, has the employer taken sufficient action and measures to help the employee. Along with this, ET also considers how another person must have behaved in similar circumstance as that of employee, before giving judgment against employer.

 

PS- The cases discussed in the post are the most known and talked about examples of constructive dismissal. There are many more situations covered under constructive dismissal and laws too might differ with country. If you have more to add to the discussion, please feel free to write.

 

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