Constructive Discharge and Contractual Obligations: When Resignation is Treated as Wrongful Termination

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Constructive Discharge and Contractual Obligations: When Resignation is Treated as Wrongful Termination

Constructive Discharge and Contractual Obligations: When Resignation is Treated as Wrongful Termination


In employment law, constructive discharge refers to a situation where an employee is forced to resign due to intolerable working conditions created by the employer. While resignation is typically considered a voluntary act, constructive discharge treats it as a form of wrongful termination. This article explores the concept of constructive discharge, the elements required to establish a claim, the contractual obligations involved, and the legal implications for both employers and employees.

Understanding Constructive Discharge
Constructive discharge occurs when an employer creates such hostile, oppressive, or intolerable working conditions that an employee reasonably feels compelled to resign. It is based on the principle that an employer should not be able to evade liability by forcing an employee to quit instead of formally terminating them.

Elements of Constructive Discharge
To establish a claim of constructive discharge, certain elements must be present:

a) Intolerable Working Conditions: The working conditions must be so severe or pervasive that a reasonable person would find them unbearable, making continued employment impossible or extremely difficult.

b) Employer’s Intent or Knowledge: The employer must either intend to force the employee to resign or be aware of the intolerable conditions and not take reasonable steps to remedy them.

c) Reasonable Response: The employee’s resignation must be a reasonable response to the intolerable conditions created by the employer.

Contractual Obligations
Constructive discharge involves the intersection of contractual obligations between the employer and the employee. The employment contract may include terms and provisions that are relevant to the claim:

a) Notice Period: The contract may specify a notice period that the employee must provide before resigning. However, in cases of constructive discharge, the employee may argue that the intolerable working conditions justified their immediate resignation without notice.

b) Termination Clauses: The contract may outline the procedures and grounds for termination. The employee may contend that the employer constructively terminated them by creating conditions that made continued employment untenable.

c) Breach of Implied Terms: Constructive discharge claims may also rely on the breach of implied terms in the employment relationship, such as the employer’s duty to provide a safe and respectful work environment.

Legal Implications
Constructive discharge has significant legal implications for both employers and employees:

a) Wrongful Termination: Constructive discharge treats the employee’s resignation as a wrongful termination, entitling the employee to similar legal remedies as if they were formally terminated without cause.

b) Breach of Contract: Employees may argue that the employer breached the employment contract by creating intolerable working conditions, violating the implied duty of good faith and fair dealing.

c) Unemployment Benefits: In some jurisdictions, employees who resign due to constructive discharge may still be eligible for unemployment benefits, as the resignation is treated as a termination through no fault of their own.

d) Legal Defenses: Employers may try to defend against constructive discharge claims by arguing that the working conditions were not intolerable or that they were unaware of the conditions or took reasonable steps to remedy them.

Establishing a Constructive Discharge Claim
Employees seeking to establish a claim of constructive discharge should take certain steps:

a) Documenting the Intolerable Conditions: Employees should gather evidence of the intolerable conditions, such as emails, memos, witness statements, or other forms of documentation that support their claim.

b) Reporting the Issues: Employees should report the intolerable conditions to their supervisor, HR department, or appropriate authority within the organization. This helps establish that the employer was aware of the conditions and had an opportunity to address them.

c) Consultation with an Employment Law Attorney: Given the complexities of constructive discharge claims, it is advisable for employees to consult with an experienced employment law attorney. An attorney can assess the situation, provide guidance on the strength of the claim, and advocate for the employee’s rights.

Employer’s Responsibility
Employers should take proactive steps to prevent constructive discharge by:

a) Creating a Positive Work Environment: Employers should foster a respectful, inclusive, and supportive work environment that values employees’ well-being.

b) Investigating Complaints: Employers should promptly and thoroughly investigate any complaints of workplace harassment, discrimination, or other misconduct to address issues before they escalate to the point of constructive discharge.

c) Taking Remedial Actions: If issues are identified, employers should take appropriate remedial actions to resolve the problems and ensure a healthy work environment.


Constructive discharge occurs when an employee is compelled to resign due to intolerable working conditions created by the employer. It treats resignation as a form of wrongful termination, allowing employees to seek legal remedies. Understanding the elements of constructive discharge, the contractual obligations involved, and the legal implications is crucial for both employees and employers. Employees facing intolerable conditions should consult with an employment law attorney to evaluate their options, while employers must strive to maintain a positive work environment and address issues promptly to prevent constructive discharge claims.

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