Let’s start by defining the various ways you might leave or lose your job:
- You resign, perhaps because you’ve got another job
- You retire, because you don’t want or need to work any more
- You’re dismissed fairly, maybe because you committed gross misconduct
- Your role is made redundant, meaning that your job isn’t available any more
- You are unfairly dismissed when your employer didn’t have a good reason to dismiss you
- You’re unfairly dismissed if your employer failed to follow the proper procedure when dismissing you
- You resign because of something your employer did (or failed to do) that’s against your contract, and you couldn’t bear to stay. That counts as constructive dismissal
What behaviours might count as constructive dismissal?
Your employment contract spells out what you and your employer should do. It covers where you work, what you do, and how you do it as well as everything you should get from them in return.
If your employer breaks their side of the contact, you might consider that you’ve effectively been dismissed. For example:
- They cut your wages without agreeing it with you in advance
- They change your work location without giving sufficient notice
- They increase your workload beyond a reasonable level
- They expect you to work in dangerous conditions
- They demote you without consent
- They allow an environment to be created where you are harassed, bullied or suffer discrimination
Note that minor breaches of contract are unlikely to amount to constructive dismissal. If your employer has put you on a Performance Improvement Plan, that might not be a good enough reason to resign. The breach needs to be fundamental and might happen just once or on a series of occasions.
Who qualifies to make a constructive dismissal claim?
You can’t make a constructive dismissal claim if you’re a worker or self-employed.
In England, Scotland and Wales…
You need to be an employee with at least two years’ continuous service.
In Northern Ireland…
You need to be an employee with at least one year’s continuous service.
Exceptions…
It doesn’t matter how long you’ve worked there if you were discriminated against, or victimised because you blew the whistle on bad practice at work.
You usually can’t make a constructive dismissal claim if you’ve already accepted a settlement agreement (England, Scotland and Wales) or a compromise agreement (Northern Ireland) from your employer – that is, they have made you a payment in return for the bad behaviour or for losing your job.
Is it easy to win a case for constructive dismissal?
Sadly not.
With unfair dismissal and wrongful dismissal, the burden of proof is on the employer. With constructive dismissal, the burden of proof is on you.
That means you need to collect all the evidence that proves your employer broke their side of the contract.
You’ll also have to go through the company’s formal grievance procedure first, to show you tried to resolve the situation.
And you shouldn’t wait too long before you resign, otherwise, the tribunal might assume you accepted the behaviour.
What to do
Keep a thorough written record of exactly what happened and when. Keep it factual and unemotional.
First, try to resolve the issue informally, if you can.
If that doesn’t help, then go through the company’s official grievance procedure, and tell your employer (in writing) that you’re unhappy with their conduct. Explain how they have breached their contract with you.
If the situation continues to be unresolved, and you feel you have no option other than to resign, include the details of the reason you’re leaving in your resignation letter. If it’s a serious complaint, you might not have to (or want to) work your notice.
It’s then standard practice to contact ACAS (or the LRA in Northern Ireland) to start early conciliation process in an attempt to avoid court.
If that doesn’t work, you can bring a claim to the employment tribunal, but it has to be within three months less one day of the date you left.
Speed is important. You can’t wait too long before you resign, and you have to act quickly if you want to make a constructive dismissal claim.
As expert employment lawyers, we can help at any stage of this process. Ideally, talk to us before you resign. The sooner you invite us to be involved, the easier it will be for us to help and advise you.
What happens when you talk to us?
The initial consultation is free and with no obligation. We’ll tell you whether your employer’s behaviour counts as a breach of contract, your options, and the amount of compensation you might win if you make a claim for constructive dismissal.
Don’t be put off by the potential cost of legal proceedings. If you have home insurance, your legal fees might be included. If not, we might be able to offer you a no-win, no-fee agreement. Other options include fixed fee and hourly rate payments.
Also, don’t worry about not understanding all the complexities of the law. That’s what we’re here for. We only work for employees who are in dispute with their employers, to ensure they get a fair outcome.
Related reading
For more on this, please see our other articles on the subject:
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