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What is constructive dismissal?

If you feel you had no choice but to resign and leave your job, this may be classed as ‘constructive dismissal’. But what exactly does that mean?

Ordinarily, a ‘dismissal’ is at the instigation of the employer, i.e. they either give notice to end the employment relationship or (if warranted), terminate without giving any notice.  However, there are some circumstances where the employer behaves in such a way that it entitles the employee to resign and claim that they were essentially dismissed.  It’s a complex area of employment law and constructive dismissal claims can be very difficult to successfully pursue - you should take advice before making any decision to resign.

What amounts to a ‘constructive dismissal’?

There are three things that need to have occurred in order for there to be a constructive dismissal:

1. There must be an actual or anticipatory breach of an express or implied contractual term by the employer that goes to the root of the employment contract.  The breach must be so serious that it entitles the employee to resign, i.e. it must be a fundamental or ‘repudiatory’ breach. Some examples of what may amount to a repudiatory breach are outlined below.

2. The employee must resign as a result of the employer’s breach of contract.  If they resign for some other reason then any claim will fail.

3. They must resign promptly. Any delay may be regarded by the employment tribunal as an acceptance of the employer’s bad behaviour and therefore any breach of contract being repaired.  Depending on the circumstances and the length of notice, it may be appropriate for the employee to resign with immediate effect, i.e. without giving any notice. 

It is worth noting a fundamental breach of contract can occur as a result of one serious incident, or a series of smaller incidents culminating in something that was the “final straw”.

 The following are some examples of potentially 'repudiatory' breaches of contract:

  • Your employer shouts at you in front of your colleagues, leaving you feeling upset and humiliated and unable to face going back to work.

  • Your employer acts in such a way as to irreparably damage the implied term of trust and confidence that exists between all employers and its employees. 

  • Your employer unilaterally imposes changes to your terms and conditions of employment without discussing them with you.

  • You are subjected to unfair treatment by your line manager and your employer fails to address your concerns properly, or at all.

Whilst you may regard something your employer has done or your manager has asked you to do as being unreasonable, it does not necessarily mean you are entitled to resign and claim constructive dismissal. 

What can I do in cases of constructive dismissal?

When it comes to constructive dismissal you need to tread carefully as proving your employer has fundamentally breached your employment contract can be difficult.  Each situation is fact-specific and it will be for the tribunal to decide on the evidence presented to it and it may not agree with you. 

In most circumstances, if you’ve been employed for less than two years, you will not be able to pursue a constructive dismissal claim. However, there are some circumstances where you may be entitled to resign and bring a claim notwithstanding you don’t have two years of service, e.g. if you were subjected to discriminatory treatment because of your age, sex, race, sexual orientation, disability, gender reassignment, religion or belief, marital or civil partnership status, pregnancy or maternity.    

It is important that you take advice before deciding to resign.  Our specialist Employment Solicitors can discuss your rights and potential options before making that decision: once you have resigned you will have no job, no income and possibly no claim.   

You would have three months less one day from the date your employment ends in which to bring a claim in the employment tribunal. Prior to issuing you need to contact the conciliation service ACAS to commence Early Conciliation (EC). EC is a free service designed to give individuals and employers a chance to resolve matters before proceedings are issued. If EC is unsuccessful you will be given a certificate number, which you will need to put on the claim form you submit to the tribunal. The actual deadline to commence a claim in the Tribunal will depend on when you started EC and the date of the certificate.

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