Constructive dismissal is the term used to describe an employee's claim that he or she has been unfairly dismissed by the actions of the employer. There are 4 tests that must be satisfied:
- a) There must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach.
- b) That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents, which justify his leaving.
- c) He or she must leave in response to the breach and not for some other, unconnected reason.
- d) He or she must not delay too long in terminating the contract in response to the employer’s breach; otherwise he may be deemed to have waived the breach and agreed to vary the contract.
A new case has recently dealt with how serious the last in a series of incidences, the so called 'last straw', must be. The Court of Appeal has previously held that if there was a final act by an employer which caused an employee to resign and claim constructive dismissal, it was not essential for that final act itself to constitute a breach of contract. In this latest case, the Court of Appeal elaborates further on the necessary quality of a final straw. The Court held that there is no need for the final act to be "unreasonable" or "blameworthy" conduct by an employer. The quality that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term of trust and confidence. The act does not have to be of the same character as the earlier acts. Its essential quality is that, when taken in conjunction with the earlier acts on which the employee relies, it amounts to a breach of the implied term of trust and confidence.