Constructive dismissal

Have you been forced to leave your job?

What is the difference between dismissal and constructive dismissal?

Constructive dismissal is when you are forced to leave your job because of your employer’s behaviour (conduct). Regular dismissal is when your employer fires you under legitimate circumstances. If you were dismissed unfairly, read more about unfair dismissal here

What are examples of constructive dismissal?

First, you need to know that constructive dismissal isn't really a 'thing' on its own. In Employment Law we use the term to describe a wrongful repudiation of contract (your employer broke their side of the deal) which makes your employment contract void. (Click here to read more about breach of contract). It's this breach of contract which may free you from the obligations of your contract and entitle you to compensation.

This may be a repudiatory breach of express terms; or, of the implied term of mutual trust and confidence.
Repudiatory: refusal to honour a legal obligation.
Express terms: any of the terms laid out in your written terms of employment; or, accepted terms under standard practise or procedure.
Implied term of mutual trust and confidence: your working relationship. A breach could be any conduct by your employer which objectively is likely to destroy or severely damage the relationship of trust and confidence. (Regardless of their intent).

Examples of repudiatory breaches:
  • Your employer has failed to pay you, or to pay you properly
  • You have been demoted or given a different position for no reason
  • Your employer has tried to make unreasonable changes to your job
  • Your employer has tried to make you work night shift, when you normally work day shifts
  • Your employer has tried to make you work weekends and evenings, when you normally work office hours
  • Your employer has allowed harassment or discrimination against you, without investigation
  • Your employer has endangered your safety by refusing to provide appropriate PPE or to meet Health and Safety regulations. For example: NHS worker forced dismissal because they weren't given PPE during the Coronavirus outbreak.
  • You have raised a formal grievance and your employer has failed to carry out a grievance investigation
  • Your work environment is hostile, for example filled with derogatory posters or artwork
  • You were sexually harassed in the workplace and your complaint wasn't investigated
  • Your employer upholds a discriminatory policy. For example, you work for a care hire shop. Your boss tells all staff to inform members of ethnic minorities that you have no cars available.

How do you prove constructive dismissal?

There must be at least one serious incident, or several minor incidents which, together, are cause for serious concern.

If you stay your employer could argue, in a court of law, that you accepted the conditions. This can affect the terms of your employment contract.

If your employer has tried to make unreasonable changes to your job, read more about what to do when your employer has breached your employment contract.

Is it worth bringing a constructive dismissal claim?

You are protected from constructive dismissal by two pieces of law: commonlaw and statute, but each is slightly different. It's important to know which one protects you (although for lots of people, it will be both), as you will need to act differently depending on one or the other.

Usually, to have a tribunal claim under statute, you must have been in your job for two years or more. But, certain things, like whistleblowing, are protected by unfair dismissal under two years.

The rule is, you need 23 months and 3 weeks of continuous employment with the same employer before you can claim unfair or constructive dismissal, unless one of the few exceptions applies. Automatically unfair dismissal is one of them.
If you are forced to leave your job within 23 months and 3 weeks of your employment, you will not be able to claim for constructive dismissal except for in specific exceptions.

If you have not had two years continuous service, you may be able to make a claim under common law at the civil court.

Common law
Statute
This is a breach of contract claim.
This can be a breach of contract claim, an unfair dismissal claim, or both.
You can claim with less than 2 years of continuous employment.
You must have 2 years continuous employment to claim.
You must resign without notice. Any notice period worked will be considered to be an affirmation of the breach of contract.
You can resign with or without notice.
You can bring your claim to the civil court OR to the employment tribunal.
You can bring your claim to the employment tribunal only.
If you win, your award will include only your notice pay and any associated benefits for that notice period. If you go to tribunal this award will be capped at 25 000, you cannot then bring your claim to the civil court to get the rest.
If you win, you may be entitled to a basic award and a compensatory award. Together, these are capped at 88 519 or 52 weeks gross salary (whichever lower). You may also be ordered an award for damages to feelings.

However, this award is subject to adjustments, it may be higher if your employer has failed to follow the ACAS code of practise on disciplinary and grievance procedures, or lower if you are found to be partially responsible for the situation.
constructive dismissal from employment law friend You have 3 months to bring your claim to the tribunal, or 6 years to bring it to the civil court.
constructive dismissal from employment law friend You have 3 months to bring your claim to the employment tribunal.
constructive dismissal from employment law friend
If you are also claiming for wrongful dismissal, do not bring wrongful and constructive dismissal claims to the employment tribunal together, unless you are happy for your award to be capped at 25 000 for both. If your claim is for a higher amount, we suggest bringing your claim to the civil court instead. However, this will require you to have worked no notice period.
constructive dismissal from employment law friend
In order for you to win your case, the tribunal must agree that the breach of contract which caused you to resign was unfair.

Constructive dismissal: Resignation


Here are the top things to think through before bringing a constructive dismissal claim:

  • Have an informal conversation - don't fly off the handle with your employer because this doesn't work. Try and have a chat with them to discuss the issues you want to raise in your grievance.
  • Raise a grievance - you need to give your employer the opportunity to remedy the issue and it weakens your case at Tribunal if you didn't raise a formal grievance before resigning because it is the fair thing to do. Make sure you tell them, in your written grievance letter, that you are 'working under protest'.
If your grievance investigation and appeal do not remedy the situation, you will need to resign without notice if you are claiming under common law. If you're claiming under common law and your case is clearly a repudiatory breach, it may be safest to resign without notice immediately instead of waiting for the results of a grievance investigation.
  • Do you have the evidence to support your claim? - emails and documents are great, but if you're just relying on witnesses who are employed in the company then be aware statements from on-going employees
  • If you do, can you afford to sue your employer? - we can help keep the costs down using our free or low cost downloads, however going all the way to Tribunal is costly (time and money - something your employers may have a lot of).
  • Don't ignore the issue and leave it until you become ill - working in a toxic environment can make you physically and mentally ill.

  • Read more about the challenges of suing your employer for constructive dismissal.

    Do you need help with your constructive dismissal claim?

    Speak to our co-founder Claudine Boast who is a practising solicitor and runs her own law firm, Parachute Law. Click here to ask her a question:

    Employment Law Specialist | Competitive Quotes | Straight Talking Legal Support


    This content is provided free of charge for information purposes only. It does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of our company. For employment law advice please get in contact and speak to your employment law solicitors.
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