Constructive dismissal

If your work situation has been made so difficult that you believe you have no choice but to resign, you may be able to bring a claim for constructive dismissal.

What is constructive dismissal?

Constructive unfair dismissal, usually referred to as constructive dismissal, occurs when an employee feels unable to carry on working in their job because of a serious breach of the terms of their employment contract. If you are put in this situation and you resign because you do not feel you have any other option, you may have been constructively dismissed.

Your reason for leaving must be serious or fundamental and it could be a one-off incident or a series of events. Examples of serious breaches of an employment contract include:

• Bullying or discrimination;
• Repeatedly not being paid your agreed salary;
• Unreasonable changes to your working patterns or place of work;
• Demotion without any good reason;
• Suspension without pay or suspension without good reason;
• Your employer’s refusal to look into a grievance;
• Behaviour on the part of your employer that has destroyed the trust and confidence in your relationship.

Can constructive dismissal be automatically unfair?

In some instances, constructive dismissal may be automatically unfair. This includes feeling that you have no option but to resign because of unfair treatment that breaches your contract and is because you:

• Have tried to enforce your statutory legal rights, such as the right to be paid a minimum wage;
• Are pregnant or on maternity leave;
• Reported a health and safety issue;
• Took action in your capacity as a trade union member;
• Taking part in industrial action;
• Refused to work in a shop or betting shop on a Sunday;
• Reported your employer for whistleblowing;
• Have been discriminated against on the grounds of age, sex, marriage, race, religion, sexual orientation or gender reassignment.

Is constructive dismissal hard to prove?

It is not particularly easy to bring a claim for constructive dismissal. You must have worked for your employer for a minimum of two years to bring a claim unless it is for a reason that is automatically unfair or because of discrimination. You only have three months, less one day, from the date of your constructive dismissal in which to start the process.

If you are in a difficult situation at work, you should try and resolve the issues with your employer without resigning if possible by using their grievance procedure. If you do not do this, there is a chance that your compensation could be reduced. It is also important not to ignore the situation, as this could be seen as your acceptance of the breach of the contract.

If you have already left and you wish to bring a claim, it is advisable to seek legal representation to ensure that your case is robust and that your rights are protected as far as possible.

The first step in commencing a claim is to notify Acas. You will usually be offered early conciliation, which is a free service designed to try and settle the problem without the need to attend an employment tribunal.

If your case does go before a tribunal, you will have to show that your employer fundamentally breached your employment contract.

Your employer may have a defence if they can claim that the dismissal was for a fair reason, such as capability, performance, discipline, redundancy or some other substantial reason.

How can our employment lawyers help?

If your job is becoming untenable, it is always recommended that you seek legal advice as soon as possible to ensure you follow the correct course of action.

Our specialist employment law solicitors will explore your constructive dismissal claim in detail and, in what can be a very stressful time, fight your corner every step of the way.

We have a proven track record in bringing constructive dismissal claims to a favourable conclusion for employees of all levels, from directors to casual workers.