Should I resign?

Sometimes resignation is the obvious choice. When, for example, you have secured a new job and want to be free to start work in a new position. 

More often than not resignation is a consideration as a result of things going wrong at work and we lose track of the callers into our firm who want to enquire as to whether they should resign in response to the treatment. Many callers also refer to constructive dismissal as a legal remedy. 

Constructive dismissal is available as a legal claim and a financial remedy is available if you win your case. However, and it is a big however, such a case is fraught with difficulties. Why? Some of the reasons are explored below. 

When you bring a claim of constructive dismissal to an Employment Tribunal the burden of proof is on you to prove that you had no option but to resign. This is unlike all other tribunal claims where the burden of proof is on the employer to defend their actions. This means that you have an initial hurdle to overcome before your claim gets off the ground. The other thing about constructive dismissal (in common with an ordinary unfair dismissal case) is that you have a duty to mitigate your financial loss. This means looking for another job as soon as possible and being able to show the tribunal that you have done so. If you secure another job on similar pay straight away the value of your tribunal claim is nil. Unless you have an injury to feelings (discrimination) award the value of pursuing your claim is likely to be negligible. You certainly should not consider paying lawyers to conduct your claim as you will surely be spending more than you could ever recoup. Remember that in Employment Tribunals your costs are your own to bear even if you win the claim. 

So you see, constructive dismissal is not easy. We really only recommend it in cases where there is no other viable option and then only when a negotiated resolution has been explored. It really should be a last resort but many people continue to think it is a good option. Not so. Be careful who you listen to. There seems to be an urban myth that constructive dismissal is a good idea. Rarely is this the case. 

The other main issue with resignation is that where the employer’s treatment is a way to push you out of your job – for example you are returning to work after cancer treatment and you can tell the tone has changed – you are giving the employer what they want if you quit. The best advice here is if you feel you are being pushed out you absolutely should seek initial advice from an employment solicitor because you lose a lot of leverage in any negotiations when you resign. Never, ever resign in a situation like this without taking advice.