Constructive dismissal is when you feel the only way to resolve a serious issue at work is to resign. If you’re in this situation, our constructive dismissal lawyers could help you claim against your employer. Our experts can also help by resolving the issue before it comes to making a claim.
In this guide:
If you’d like to speak to one of our experienced team about whether you have a constructive dismissal claim, please call us on 0207 650 3999.
What is constructive dismissal?
Constructive dismissal is when you feel forced to resign from your job because of your employer’s conduct, or because of an ongoing serious issue in the workplace.
This is different from unfair dismissal where you can make a claim if you’ve been dismissed unfairly by your employer.
What is the difference between constructive and unfair dismissal?
There are some stark differences between constructive and unfair dismissals. This includes:
Constructive dismissal:
- Employee-initiated - You resign as the employee, but your resignation was triggered by your employer's actions.
- Fundamental breach of contract - Your employer's conduct must be a serious breach of your employment contract. This could be harassment, failure to pay wages, or unreasonable changes to working conditions.
- Resignation must be in response to the breach - You must resign shortly after the breach occurs. If there was a delay in your resignation, it could be seen as accepting the situation.
Unfair dismissal:
- Employer-initiated - Your employer has terminated your contract.
- Fair reasons for dismissal - You can be fairly dismissed by your employer for reasons such as misconduct, redundancy, poor performance, or other substantial reasons.
- Unfairness is the key - Your dismissal can be considered unfair if your employer's actions were unreasonable or not in accordance with law.
Constructive dismissal time limits?
You must start your constructive dismissal claim within three months less one day of the termination date of your employment. So if your employment ended on 3 October, then you must start your claim by 2 January.
For an employment tribunal to consider your claim, you’ll first need to go through the ACAS Early Conciliation process. This gives you and your employer an opportunity to try and resolve your dispute, without bringing a claim to an employment tribunal.
The ACAS Early Conciliation process usually takes around six weeks. If you and your employer can’t reach an agreement, then you’ll be issued with a certificate which will allow you to take your claim further. You’d then usually have at least one month to make a constructive dismissal claim in an employment tribunal.
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What are the grounds for constructive dismissal?
To claim constructive dismissal, you need to show that you resigned because of your employer’s conduct or behaviour towards you.
The legal rules for a claim
The following rules apply:
- Your employer has breached the terms of your employment contract (including non-written terms that are implied into your contract, such as the term of mutual trust and confidence).
- The reason you're leaving your job is serious and valid.
- Your employer’s conduct is the direct reason you're resigning (with or without serving your notice period).
- You've resigned promptly after the incident or final act.
Common examples of a serious breach
The reasons you leave your job must be serious. For example, your employer:
- Has reduced your pay without your agreement
- Has not paid you, or not paid you on time on a number of occasions, without good reason (this also includes changing other benefits you're contractually entitled to receive)
- Has changed your duties or demoted you without your agreement or without a good reason
- Has unfairly accused you of poor performance
- Forced you to work in unsafe conditions
- Knows that you’ve been harassed or bullied at work and hasn’t properly dealt with it
- Refused to investigate a grievance you’ve raised
- Discriminated against you
- Treated you badly because you have blown the whistle on wrongdoing, risks or malpractice at your place of work.
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Can I claim constructive dismissal?
If you believe you’ve been constructively dismissed, you may be able to bring a claim. To be eligible, you must:
- Be an “employee” and not a “worker” (this will exclude independent contractors and most agency staff)
- Have at least two years’ continuous service
- Not be employed by the army or police (although there are some exceptions for police officers)
- Not be taking part in unofficial strike action
- Not work on a fishing vessel if you are paid by sharing the profits.
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What if you've worked for your employer for less than two years?
While you normally need two years of service to claim constructive dismissal, there are very important exceptions to this rule. If you were forced to resign for a reason that is classed as "automatically unfair" or discriminatory, the two-year requirement does not apply.
Automatically unfair reasons
It is "automatically unfair" if you were forced to resign because you were treated badly for reasons such as:
- Pregnancy or Family Leave: You are pregnant, on maternity/paternity leave, or have requested parental leave.
- Asserting a Legal Right: You asked for a basic legal right at work, for example, to be paid the -National Minimum Wage or to have safe working conditions.
- Whistleblowing: You reported your employer for wrongdoing (this is known as "whistleblowing").
- Trade Union Membership: You are a member of a trade union and took part in its activities or official industrial action.
Discrimination
You can also bring a claim if you were forced to resign because your employer discriminated against you. This is when you are treated unfairly because of a "protected characteristic." The two-year service rule does not apply to these claims.
It might be discrimination if you were treated badly because of your:
- Age
- Disability
- Gender reassignment
- Marital or civil partnership status
- Pregnancy or maternity
- Race, ethnicity, or nationality
- Religion or belief
- Sex
- Sexual orientation.
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How do you prove constructive dismissal?
You’ll need to prove that your employer’s conduct was sufficiently serious to make you resign. This may be one serious breach, but it may also consist of a series of cumulative actions building up over time.
Proving constructive dismissal can be difficult, so you'll need to be able to show:
- Your employer’s conduct breached your employment contract (which includes breaching the implied term of mutual trust and confidence)
- The seriousness of the breach
- That you resigned in response to that breach
- That the resignation was made promptly.
If you stay on despite your employer’s conduct and then leave for another reason, this will not be classed as constructive dismissal.
You may not be able to claim if you wait too long before resigning, as this may be treated as waiving the breach of contract and agreeing to continue in employment. As proving constructive dismissal can be challenging to prove, it’s important that you get legal advice before you resign.
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What happens if you win your constructive dismissal claim?
There are three options if you win your constructive dismissal claim. At the start of your claim you can say which option you’d prefer from:
- Reinstatement
This means you’d go back to your previous role. You would still usually be paid some compensation as well. Most people who have resigned in response to the way their employer has treated them, do not want to return to the same job.
- Re-engagement
You’d go back to work for your employer, but in a different role or area of the business. As with reinstatement, you’d still normally get some compensation too. This is usually only relevant if you work for a large organisation.
- Compensation
This is the most common outcome. You don’t go back to work for your employer and are instead compensated for your financial loss.
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How much compensation might you get?
The compensation for constructive dismissal will differ claim to claim.
Constructive dismissal compensation will be influenced by:
Unfair dismissal
Please see our unfair dismissal guide for a detailed breakdown of how this part of your compensation is calculated.
Breach of contract
In many cases people who claim constructive dismissal, have left without working their notice period. In these cases you may be able to claim for “breach of contract”.
This breach of contract compensation aims to put you in the same financial position as if you‘d worked your notice period. This would include your net pay for that period, as well as the value of any benefits you would have received.
Injury to feelings
If your case involves other claims such as discrimination or whistleblowing you would also be entitled to an injury to feelings payment.
Length of service
The longer you've been at the company, the more compensation you could receive.
Age
You could receive a higher basic award if you're older.
Reasonable expenses
This includes any reasonable costs involved with finding a new job or retraining.
Loss of future earnings
If you've not found a new job or your new job pays less, you can claim for loss of future earnings.
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What should you do if you're considering resigning?
We’d normally recommend raising a grievance with your employer to try and resolve your issue before resigning.
It’s important that you get legal advice before resigning, so you understand your options and the chances of you winning a constructive dismissal claim.
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Contact us
Call us today on 0207 650 3999 to find out how our employment team can help with your constructive dismissal claim.
