Did your employer push you out? Here is what you need to know about constructive dismissal
It is a situation that more people find themselves in than you might expect. An employer begins to behave unreasonably, makes changes to the job that they never agreed to, or allows the working environment to become genuinely hostile. The employee endures it for as long as they can and eventually decides that continuing simply is not tenable. They resign, and they assume that by doing so, any legal claim goes with them.
That assumption, understandable as it is, is often wrong. Under UK employment law, a resignation made in response to serious misconduct by an employer can be treated as a dismissal in the eyes of the law. This is what is known as constructive dismissal, and it carries the same legal weight as being formally terminated.
What constructive dismissal actually means
The legal definition centres on the concept of a repudiatory breach. In plain terms, this means your employer has either broken a significant term of your employment contract or has behaved in a way that fundamentally undermines the trust and confidence that should exist between employer and employee. When that happens, the employee is entitled to treat the contract as at an end and resign accordingly.
A single serious incident can be enough, but so can a series of smaller actions that, together, amount to the same thing.
Common examples include being denied pay that was contractually agreed to, being demoted without justification or proper process, having job responsibilities significantly altered without consent, and being subjected to harassment or bullying while the employer fails to intervene. These are not minor grievances. They represent a genuine failure on the employer's part to honour the employment relationship.
How constructive dismissal differs from unfair dismissal
The two claims are related but distinct. An unfair dismissal claim arises when the employer actively terminates employment without adequate reason or proper process. With constructive dismissal, the employee resigns, but argues that the employer's conduct made that resignation inevitable. The burden of proof lies with the employee to demonstrate that the resignation was a direct and reasonable response to the employer's breach.
Who is eligible to bring a claim
In most circumstances, an employee must have at least two years of continuous service before they can pursue a constructive dismissal claim, and the claim must be brought as an employee rather than as a self-employed contractor. These distinctions are not always obvious, and if there is any uncertainty about employment status, it is worth seeking professional advice before proceeding.
An important exception
Where the reason for the dismissal relates to whistleblowing or discrimination, the two-year service requirement does not apply. Employees in these circumstances can bring a claim regardless of how long they have been employed and may also be entitled to additional compensation for injury to feelings.
Why raising a grievance matters before you resign
Where possible, it is strongly advisable to raise a formal grievance with your employer before taking the step of resigning. Doing so demonstrates that you attempted to resolve the situation through the proper channels, which tribunals look upon favourably. It also gives the employer a documented opportunity to remedy the problem. Failing to follow the ACAS Code of Practice on grievance procedures, without good reason, can result in any compensation award being reduced by up to 25 per cent.
Time limits apply
Employment tribunal claims for constructive dismissal must be submitted within three months minus one day of the date of resignation, or the end of the notice period if notice was served. This deadline is strictly enforced. Missing it will, in almost all cases, mean losing the right to bring a claim altogether.
What you will need to establish
To succeed in a constructive dismissal claim, three things must be demonstrated. First, that the employer committed a genuine repudiatory breach of contract. Second, that the resignation was a direct response to that breach rather than the result of some other factor, such as accepting a new position elsewhere. Third, that the employee did not delay unreasonably after the breach before resigning, as a prolonged period of continued employment may be taken as evidence that the breach was accepted and the contract affirmed.
Employers will typically defend themselves by denying that any breach occurred, arguing that changes were agreed to or were within their contractual rights, or asserting that the resignation was motivated by personal reasons unrelated to their conduct. The strength of the employee's position often comes down to the quality of the evidence gathered and the steps taken before resigning.
Compensation and remedies
Where a constructive dismissal claim succeeds, the employee is entitled to the same compensation available in an unfair dismissal case. This comprises a basic award, calculated on the basis of age, length of service, and weekly pay, and a compensatory award reflecting actual financial losses such as lost earnings and benefits. The compensatory award is subject to a statutory cap in most cases, though claims involving discrimination are not capped and can include damages for the emotional harm caused.
Taking the next step
Constructive dismissal cases require careful handling from the outset. The decisions made before and during the resignation process can significantly affect the strength of any subsequent claim. Whether you are currently experiencing difficulties at work or have already resigned and are considering your options, taking early legal advice is one of the most valuable things you can do.
At Salem Legal Services, our employment team advises clients at every stage of this process, from managing a grievance through to representing them at tribunal. We provide clear, honest guidance tailored to the specific circumstances of each case.
