A constructive dismissal generally occurs when an employee leaves their employment as a final option to escape a hostile or harassing work environment.
It can also occur when the terms of a worker’s employment contract, whether express or implied, change to such a degree that the worker finds themselves doing a less-desirable job different than the one they contracted for and was hired to do.
When it can be shown that the facts of a worker’s potential constructive discharge case coincide with the definition and requirements of constructive dismissal in employment law, there may be legal remedies available for the harm caused by the dismissal.
What is constructive dismissal?
Also commonly referred to in employment law as constructive discharge, constructive termination, and forced resignation, a constructive dismissal occurs when an employee resigns from a job in which the work environment has become too hostile for a reasonable person to bear.
The resignation might occur after a single egregious hostile incident, or it could happen after a time of progressive hostilities and harassments until conditions became intolerable. While the resignation might appear voluntary, it could amount to constructive dismissal when the legal elements of that charge can be proven under employment law.
Constructive dismissal breaches the contract of employment between the employer and the employee. This breach does not require a written contract between the parties, as it includes breach of the agreements included in all employment contracts, such as the right to work in an environment free from hostilities and harassment, and the right to have complaints of ill-treatment in the workplace addressed and redressed by the employer when warranted.
Some examples of workplace activity that might lead to constructive dismissal include the following:
- The removal/reassignment of job duties usually performed by the worker
- A reduction in pay without reasonable explanation
- Unwarranted relocation of a worker to a less desirable work area
- The allowance of a sexually or otherwise harassing environment
- The removal of support afforded to similarly-situated workers
Determining whether you have a constructive dismissal claim
In order for a constructive dismissal claim to be successful, there must be a fundamental breach of a duty owed to the employee by the employer under employment law. For example, an employer has a right to make changes to its mode of operation for business reasons, however, when the changes made affect one employee or a protected class of employees disproportionately and adversely, these changes could be a pretext, which is not allowed under employment law.
In this example, an employment lawyer might be able to help determine whether the changes were designed to force a worker to be constructively dismissed, and legal remedies in employment law may apply.
While the United States Equal Employment Opportunity Commission employs a three-prong test to prove constructive dismissal, some states, such as California, have used federal law as the basis to expand employee protections.
A discharged employee may be able to determine whether their case facts rise to the level of a constructive dismissal in consultation with a labor and employment lawyer.
