Author: Daniel A. Lublin
Are you doing the job you were hired to do? Or are you doing something completely different? Have the terms of your employment agreement been changed without your permission?
If so, you may have been “constructively dismissed,” whether you realize it or not. And you may be entitled to damages.
Constructive dismissal occurs where your employer unilaterally implements a fundamental change to the essential terms of your job. When this happens, the job you are performing is significantly different than before, and your employer may therefore be deemed to have dismissed you.
However, since no formal termination or dismissal actually took place, the situation is referred to as a constructive dismissal.
You should keep in mind that it is not every change to your job that triggers a constructive dismissal. Rather it is those changes that go to the essence of your employment agreement. Things like a demotion, reduced responsibilities, a reduction in income, a change in working hours, or a geographic transfer. There are even some cases that say that a highly intolerable work environment may lead to a constructive dismissal.
The case of my former client named Raj is a good example. Raj was a senior account manager with several junior employees reporting to him. He was earning $60,000 a year. Suddenly, his job structure was changed; he had fewer responsibilities and fewer people directly reporting to him. Raj was asked to perform work that was more menial, and his salary was lowered by $10,000 to reflect what he was told was the “restructuring” of his position.
Like Raj, if you can show that you were constructively dismissed, you may be entitled to damages comparable to those you would receive if you had been terminated outright by your employer — such as reasonable notice, or pay in lieu thereof, topics we’ve discussed in the past few articles. In some situations, you may also be able to resign after being constructively dismissed and then claim damages. However, your resignation will only be appropriate if the changes in your job make your continued employment intolerable, or your work demeaning. If you do experience significant changes to your job, and you continue to work without objection, you have condoned the changes, and you will not be able to claim that you’ve been constructively dismissed.
Having your job changed against your wishes can be a very significant event but it doesn’t necessarily have to end up poorly for you. If you think you’ve been constructively dismissed, you should consult with an employment law expert who can properly advise you on what options you may have.