No employee should bring a claim of constructive dismissal lightly. Claiming constructive unfair dismissal in the employment tribunal can involve complex legal issues. We set out some points to bear in mind before embarking on such a claim.

Litigation in the employment tribunal

• In order to recover compensation from their employer, an ex-employer is likely to need to pursue a claim in the employment tribunal.
• While compensation can be recovered in the employment tribunal if a claim is successful, constructive dismissal is a difficult type of case to win.
• If an individual fails to convince the employment tribunal that they were constructively dismissed by their employer, they will not receive any compensation and will still have to pay legal fees.
• An employee must resign from their job before they can bring a claim of constructive dismissal. This means they will immediately stop receiving salary and benefits from their employer and it may be a substantial period of time before they receive any compensation.
• Litigation is stressful and can take a long time, there is never any absolute guarantee that a claimant will win their case at an employment tribunal.

Have I been constructively dismissed?

Ultimately, only an employment tribunal can decide if an individual has been constructively dismissed.

A tribunal will be looking at whether the employee resigned in response to a very serious breach of contract by the employer (sometimes referred to as a repudiatory breach). This is behaviour by the employer which is so bad, it entitles the employee to resign and leave employment.

The difficulty comes in deciding whether or not the employer’s conduct amounts to a breach of contract or if is just unreasonable (which would not be enough to establish a constructive dismissal claim).

A good rule of thumb can be to ask: are matters at work are so intolerable that I feel that I can no longer carry on working here and have no choice but to resign?

What is a repudiatory breach?

A repudiatory breach is a very serious breach. It must be more than just unreasonable behaviour by the employer and must be a breach of an express term of your employment contract (e.g. in relation to pay, benefits or seniority) or, more commonly, the implied term of trust and confidence.

It can be very difficult to draw a line between what is merely unreasonable behaviour and what amounts to an actual breach of contract; ultimately only an employment tribunal can decide on this issue. 

Trust and confidence is extremely wide in scope; there is an almost limitless amount of ways in which an employer can breach this term. It could for example, relate to the way in which an employer has dealt with a workplace matter such as a complaint of bullying and harassment.

Whether or not there has been a repudiatory breach is something that an employment tribunal will ultimately decide based on the facts of each case. It is advisable to ask yourself whether your employer has made your position untenable or, whether it is simply intolerable for you to be in the working environment as a result of their actions (or lack of action).

Where an employment tribunal decides that the employer has not committed a fundamental breach of contract (whether an express or implied term) then a claim of constructive dismissal will fail. It will come down to whether an employment tribunal thinks the employer’s conduct (or its effect) is serious enough to amount to a breach.

Examples of contract breaches

The sorts of breaches of contract which might implore an employee to resign and therefore found a constructive dismissal claim include:

• a significant reduction in salary (or threatened reduction) without your agreement
• removal of a contractual benefit without your agreement
• reduction in seniority for no good reason
• completely changing the nature of your job
• unreasonable performance management (e.g. imposing unrealistic targets)
• disciplinary proceedings which are obviously unfounded
• seriously undermining your authority (e.g. disciplining you in front of junior colleagues)
• failing to observe health and safety laws
• regularly requiring you to work excessive hours which affects your health
• harassment or bullying
• failing to address legitimate concerns you have raised about your workplace/working conditions
• rejecting a flexible working request for no legitimate reason

Claiming constructive dismissal

It is important that you make it clear that you are resigning because of your employer’s conduct towards you and not for some other reason (e.g. you have another job or are relocating).

It is also important that you do not delay too long between becoming aware of your employer’s serious breach of contract and actually resigning.

There may be a legitimate need to hold off from resigning in some circumstances such as where you are waiting to hear the outcome of a relevant grievance. It is advisable to make your employer aware that you are reserving your rights or working under protest so that they do not form the impression that you are accepting (or “waiving”) their bad behaviour.

Practical considerations of claiming constructive dismissal

In constructive dismissal claims, the onus is on the claimant (ex-employee) to show that there was a repudiatory breach of contract by their employer that prompted their resignation. This will involve producing evidence of the employer’s behaviour so make sure you keep relevant documents, emails and letters which may assist your case.

It is advised that you keep a diary of events, conversations and developments as well as putting together a timeline of what happened when. At the very least keep a note of all relevant conversations.

You should also consider who you might usefully ask to give evidence to support your case. For example, colleagues who heard or witnessed any relevant events or conversations.

Can I work my notice?

Provided your notice period is not too long then working notice after tendering your resignation, is not necessarily a bar to successfully claiming constructive dismissal.

However, we would suggest that this should be a matter of weeks rather than months. For example, a six months’ notice period would certainly be too long. This is because, given the nature of the claim (essentially you will be arguing that you could not bear to be employed any longer due to your employer’s behaviour), it will usually be more appropriate to resign with immediate effect. However, there are obviously negative financial implications of this for most employees.

Must I lodge a grievance before I resign?

There is no rule which says you MUST lodge a grievance before your resignation and claim constructive dismissal. However, it is usual for people to do so and there may be consequences for the amount of compensation which is recovered in the employment tribunal if you don’t resign promptly (potentially a reduction of 25%).

Conversely, an employee will not normally be prejudiced if they raise a grievance and delay in resigning until the employer’s response (assuming the grievance is rejected) is known. However, in these circumstances the employee should make it clear that they object to the actions about which they complain and are continuing to work under protest in the period while they wait for the employer to deal with their grievance.

Once the employer’s decision is known an employee must make their decision promptly -although what period of time is reasonable will depend upon the facts of each case.

Alternatives to claiming constructive dismissal

Employees who have not been employed for two years or more will not usually be able to bring an unfair dismissal claim in the employment tribunal (subject to exceptions such as in cases involving whistleblowing or discrimination).

However, in such cases, it may be possible to bring a wrongful dismissal claim for the value of salary and benefits during what would have been their notice period.



Important disclaimer

This article is no substitute for professional advice about your particular circumstances. We would strongly recommend any individual who is considering resigning in order to claim constructive dismissal to take specific legal advice (without delay) before resigning from their employment. While we always strive to ensure our content is as accurate as possible, Springhouse accepts no responsibility for any loss caused as a result of reliance on this article.