Constructive Dismissal: When Your Resignation Can Be Unfair Dismissal

Imagine resigning from your job only to discover that your departure could entitle you to compensation for unfair dismissal – this is the reality of constructive dismissal.

Understanding Constructive Dismissal in UK Employment Law

Constructive dismissal occurs when an employee feels compelled to resign because of their employer’s serious misconduct, effectively turning a voluntary resignation into an unfair dismissal claim under UK employment law. This principle protects workplace rights by recognising that not all resignations are truly voluntary.

Defined in section 95(1)(c) of the Employment Rights Act 1996, constructive dismissal happens when you end your employment contract due to your employer’s fundamental breach of that contract. If proven, it allows you to claim unfair dismissal at an employment tribunal, just as if your employer had sacked you.

This guide explains the essentials of constructive dismissal claims, from recognising a breach to navigating tribunal procedures, empowering you with knowledge of your employee protections.

What is Constructive Dismissal?

In plain terms, constructive dismissal is a legal concept where you resign because your employer has fundamentally broken the terms of your employment contract, making your working situation intolerable. Under section 95(1)(c) of the Employment Rights Act 1996, this resignation is treated as a dismissal for the purposes of an unfair dismissal claim.

The key is that the employer’s behaviour must be so bad that it shows they no longer intend to honour the contract. You must resign promptly after the breach to affirm that you are treating it as ending the contract. For example, if your boss suddenly demotes you without reason and cuts your pay drastically, this could be a repudiatory breach leading to constructive dismissal.

What Counts as an Employer Breach of Contract?

For a constructive dismissal claim, the employer’s conduct must amount to a breach of the implied or express terms of your contract. Breaches can be actual (e.g., failing to pay wages) or anticipatory (threatening to do something unlawful). Crucially, it must be serious – a minor issue like a one-off late payslip won’t suffice.

Common breaches include unilateral changes to pay, hours, or duties without agreement, harassment, or failure to provide a safe working environment. Courts look at the employer’s course of conduct, not just isolated incidents. Imagine your employer repeatedly ignores your requests for promised flexible hours, forcing you to choose between family and work – this cumulative effect can build a case for breach.

• Non-payment or underpayment of wages
• Unilateral demotion or reduction in responsibilities
• Persistent bullying or harassment
• Making your position untenable through overload

Common Examples of Constructive Dismissal

Many constructive dismissal cases stem from everyday workplace issues escalating into breaches. For instance, if your manager falsely accuses you of misconduct without investigation and places you under disciplinary proceedings, this could breach the implied term of trust and confidence.

Another example is when an employer stops paying bonuses that were a contractual entitlement or suddenly requires excessive overtime without extra pay. In one typical case, an employee resigned after their employer refused reasonable adjustments for a disability, breaching equality duties – though discrimination claims may run alongside.

The Two-Year Qualifying Period for Claims

Under section 108 of the Employment Rights Act 1996, you generally need at least two years of continuous employment to bring an unfair dismissal claim, which includes constructive dismissal. This qualifying period ensures short-term employees handle issues differently.

Exceptions apply if the dismissal relates to automatic unfair reasons like whistleblowing or discrimination – no service requirement then. Breaks in service don’t always reset the clock; check your continuity rules.

Time Limits and ACAS Early Conciliation

Time is critical: you have three months less one day from the effective date of termination (your resignation date) to contact ACAS for early conciliation, per section 111 of the Employment Rights Act 1996. This process pauses the clock for up to six weeks, or longer if extended.

After conciliation ends, you have at least one month to file your tribunal claim. Miss this, and your case may be time-barred unless exceptional circumstances apply. Always note your resignation date precisely.

1. Contact ACAS online or by phone within three months of resignation.
2. Obtain your early conciliation certificate.
3. Submit ET1 form to the tribunal within the remaining time.

Proving Constructive Dismissal at the Employment Tribunal

At the employment tribunal, you must prove on the balance of probabilities that your employer breached the contract fundamentally and you resigned in response. Tribunals consider the last straw doctrine – a final incident atop prior issues.

Prepare witness statements, emails, and grievance records. Representing yourself? Focus on chronology and facts, avoiding emotional arguments. Tribunals follow ACAS codes, so show you raised concerns first.

• Resignation letter citing the breach clearly
• Records of grievances and employer responses
• Witness corroboration

Potential Remedies and Compensation

Successful claimants receive a basic award (like redundancy pay: one to 1.5 weeks’ pay per year of service) and a compensatory award for financial losses like lost earnings, capped annually (currently around £115,000). Tribunals also consider future losses and emotional impact via injury to feelings, though capped.

Reinstatement or re-engagement is possible but rare. Polkey reductions may apply if you contributed to the situation. Always mitigate losses by seeking new work promptly.

Wrapping Up: Know Your Rights Against Constructive Dismissal

Constructive dismissal offers vital protection when employer breaches force you out, converting unfair dismissal resignation into a winnable tribunal claim. Understanding these rights under UK employment law equips you to act decisively.

Always document issues, raise grievances, and seek ACAS help promptly. While challenging, many self-representing claimants succeed with solid evidence.

Empower yourself with knowledge of constructive dismissal to safeguard your workplace rights.