Some years ago, I was advising a union member about her situation. If I recall correctly hers was a case in which she was being subjected to bullying behaviour by her manager – she was at emotionally drained. At some point, the term constructive dismissal was raised, I can’t remember by whom, but I do remember the look and the response of confusion. How can dismissal be a good thing? I don’t want to be dismissed!
Those were not the exact words used but the gist is there. It took me a while to clock the point she was making, if some is done constructively then in usual language that is a good thing – so how can my dismissal ever be positive? She had a good point. The main (online) dictionary definition of “constructive” is “helping to improve; promoting further development or advancement (opposed to destructive)”.
Now, if you are a reader who has studied law, or been involved with HR or union issues a long time the chances are there are more productive uses of your time than continuing to read this post. But, for those of you left, what exactly is constructive about constructive dismissal?
Whether it is using Latin (for example, the number of times I see a lawyer deploy the term ultra vires* in discussions with clients astounds me) or by taking a word everyone understands, like “constructive”, and using it in a way that it means something completely different the language of law can often mean it is obstructive, if not impenetrable. In an employment context where use of lawyers by workers (normally the weaker party) is an exception that impenetrability is a significant obstacle to just outcomes to disputes.
When used in a legal sense (and it is used a lot!) the term constructive is to denote a legal reality which is not aligned with the actual reality, it is when the law treats something has happening even if it did not occur. So, one legal dictionary says “constructive” means “a legal fiction for treating a situation as if it were actually so. [For example,] although Jeremiah Gotrocks does not have the [jewellery] in his possession, he has the key to the safe deposit box and the right to enter so he has “constructive possession”.
The American lawyer Alfred H Knight, in what I think is a delightful quote explained the utility of “constructive” findings in the following way:
The word “constructive” is one of the law’s most useful frauds. It implies substance where none exists. There can be constructive contracts, constructive trusts, constructive fraud, constructive intent, constructive possession, and constructive anything else the law chooses to baptize as such. “Constructive” in this sense means “treated as.” A court can reach a desired result by calling a transaction that doesn’t cut the decisional mustard “constructively” a transaction that does.
From Alfred H Knight, The Life of the Law (1996).
Accurate though I think it is, it is possible to see some cynicism in Knight’s summation (I say legal fiction, Knight says legal fraud) it is unquestionably true that the approach has been abused historically, constructive treason being the clearest example.
The relevance of “constructive” fictions in employment
There are two main scenarios where the idea of “constructive” circumstances applies for workers: constructive dismissal and constructive knowledge (usually of disability – but the same separate arguments of constructive knowledge are possible in other contexts). Given the summary above that constructive means the law “treats as” though the thing described (dismissal, knowledge, etc) happened, even though it literally did not, meaning the basic definitions can be stated in this way:
- Constructive dismissal – The employer did not actually dismiss the worker (tell them “you are sacked”) but made continuation of the contract intolerable for the worker so they ended the employment contract themselves.
- Constructive knowledge of disability – The employer does not actually know a worker is a disabled person but has been given enough information to be on notice that the employee could be and is obliged (but fails) to make any or enough further enquiries to establish the truth of the situation.
In an employment context, these are extremely important safety checks to ensure that employers cannot abuse the position of relative power they have and evade liability for wrongdoing – otherwise an employer could deliberately force an employee to leave their role by making life intolerable for them but then claim there has been “no dismissal” and so evade any liability for its oppressive conduct. In that way, a constructive dismissal is not a type of “fraud” as Albert Knight would presumably suggest, but a mechanism to ensure the law does not favour the savvy rogue employer and looks behind the labels to see what was really happening in workplace.
There has been some move to try to move away from this use of the term “constructive” in employment law. In respect of disability the legislation does not refer to constructive knowledge but to circumstances where an employer cannot show they “could not reasonably have been expected to know” that a person had a disability (sections 15(2) and paragraph 20(1) of Schedule 8 of the Equality Act 2010). There is therefore no reference to “constructive” knowledge (but it means the same thing) and Tribunals have been told to avoid talking about constructive knowledge (but they still do). Similarly, section 95(1)(c) of Employment Rights Act 1996 says a person is dismissed when “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” This is a constructive dismissal but is not referred to as such – if a person succeeds in a claim relying on this type of dismissal they are not “constructively unfairly dismissed” but just unfairly dismissed. The only time a person needs to expressly refer to a constructive dismissal claim is when they are claiming a simple breach of contract (not a claim of unfair dismissal) and these claims are rare for most workers (high paid employees with long notice periods are an exception). Be that as it may, however, the “constructive dismissal” and the “constructive knowledge” terminology is ingrained in how claims are described in websites, employment tribunal judgments and advisor’s language – it is not overly helpful, but it is the reality.
So, if interpreted under the normal rules of language as widely spoken, there is nothing constructive about a constructive dismissal at all. Instead, what constructive really means when used in this legal sense is that a person tries to convince an employment judge that
(i)I know I was not actually dismissed in the way people understand the term /
(ii) I know my employer did not actually know I was a disabled person,
BUT
(i) The employer made it impossible for me to carry on working and so I resigned in response to this (constructive dismissal).
(ii) the employer should have known I might be disabled from the information it did have but did not make the enquiries it should have made to confirm the reality of the situation (constructive knowledge).
And so, on an individual level there is nothing constructive about a constructive dismissal at all, but as a concept, it is a positive means in which employees can still succeed in challenge employer relying either on the destructive way an employer treated its obligations to the employee under the employment constructive or the negligent way it failed to act on warning signs that a worker may be disabled.
*Ultra vires just means acting outside of one’s legal authority. For example, if a Magistrate has a power to impose a criminal sentence of a maximum of 1 year, but they sentence someone to 2 years imprisonment, then the sentence is ultra vires and unlawful. Quite a simple idea really, so why it needs to be complicated by recourse to Latin I don’t know!
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