What is Constructive Dismissal?

The process typically involves a fundamental breach of contract, such as a breach of an express term (pay, hours, place of work) or an implied term (particularly the duty of mutual trust and confidence). This may be due to a singular event or numerous incidents over a period of time. When an implied duty is destroyed, the employee may feel forced to resign.

Employees typically require two years of continuous service to pursue a constructive unfair dismissal claim. Exceptions do occur, particularly in cases involving discrimination, whistleblowing, or certain health and safety matters.

The employee must also demonstrate that:

• The employer committed a serious breach.
• The resignation was in direct response to the violation.
• They did not wait too long before resigning.
• They attempted to resolve the issue as reasonably as possible.

Constructive dismissal claims are legally complex, which is why employees often seek early advice before resigning or initiating proceedings.
 

When a job role substantially changes without agreement, it may breach the employment contract. 
Examples of this include:

• A significant reduction in pay.
• Removal of core responsibilities.
• A forced relocation with no contractual basis.
• Sudden and unreasonable changes to shifts or hours.

If the contract does not allow these changes and the employer imposes them anyway, the employee may treat the breach as suitable grounds to resign.
 

Consistently paying an employee late, making unlawful deductions, or refusing to honour contractual entitlements can also indicate a breach. Pay is a fundamental term of employment, and failure to meet it is treated seriously. 

Some constructive dismissal claims arise when employers misuse procedures, such as launching disciplinary action without evidence or conducting a clearly biased investigation. Poor handling of grievances can also amount to a breach, particularly if procedures are ignored or applied inconsistently.

These examples demonstrate the types of conduct that may meet the legal threshold. However, each case is fact-specific, and tribunals evaluate the full context of the case.

Constructive dismissal is defined under the Employment Rights Act 1996. The law recognises that an employee may resign in circumstances where they are entitled to do so because of the employer’s conduct. In effect, the resignation is treated as a dismissal.

The tribunal will look at whether the employer:

• Committed a fundamental breach.
• Allowed a series of smaller breaches to accumulate.
• Took a ‘final straw’  action that tipped the balance.

The employee must demonstrate that the breach negatively impacted the employment contract.
 

Ordinary constructive unfair dismissal generally requires two years of continuous service. However, employees may claim automatic unfair dismissal without the qualifying period if the dismissal relates to:

• Health and safety concerns.
• Whistleblowing.
• Trade union membership or activity.
• Pregnancy or maternity.
• Certain types of discrimination.

These categories recognise the seriousness of the employer’s actions.
 

Claims must begin the Acas Early Conciliation process within three months minus one day of the effective date of termination. After conciliation, employees can proceed to an employment tribunal claim.
 

There are common patterns that appear in cases where constructive dismissal is eventually claimed.

These include:

• Persistent bullying from colleagues or managers.
• Sudden and unreasonable changes to job responsibilities.
• Removal of key responsibilities without explanation.
• Repeated underpayment or non-payment.
• Being deliberately excluded from meetings or communication.
• A lack of response to genuine concerns.
• Unfair disciplinary action.
• A breakdown in trust following mishandled investigations.

When these behaviours continue over time and the employer fails to act, the relationship may become unsustainable.
 

Document any significant changes to responsibilities, pay, or working conditions. Determine whether the contract provides the employer with the right to make these changes.

Ensure you have:

• Held an informal discussion.
• Submitted a written grievance.
• Asked for a meeting to resolve concerns.

Employers should have a reasonable opportunity to fix the issue.

Before resigning, employees should speak to:

• A trade union representative.
• A solicitor.
• Citizens Advice.
• The Acas helpline.

Early guidance helps ensure the right steps are taken.
 

1. Resignation

The resignation should:

• Be in writing.
• Clearly reference the employer’s breach.
• Be submitted promptly after the final incident.
• Avoid long delays.

Any significant delay may be interpreted as acceptance of the employer’s conduct.

2. Acas Early Conciliation

Employees must initiate Early Conciliation before submitting a tribunal claim. This can lead to a settlement without the need for a hearing. If Early Conciliation does not resolve the matter, Acas issues a certificate that allows the employee to file a tribunal claim.
 

Dismissal terminology can be confusing, but the distinctions are important as they lead to different legal outcomes.

Constructive dismissal

This occurs when an employee resigns due to an employer’s serious breach. The resignation is treated as a dismissal. The core issue is whether the employer’s conduct left the employee with no reasonable alternative.

Unfair dismissal

This involves an employer actively terminating employment. The tribunal evaluates whether the employer had a fair reason and followed a fair procedure. Unfair dismissal does not require a breach of contract; it focuses on fairness and process.
 

Wrongful dismissal

Wrongful dismissal relates to breach of contract. It is based on whether the employer followed contractual obligations, particularly notice periods. An employee may be wrongfully dismissed even if the dismissal is procedurally fair if the employer fails to provide the correct notice.

Understanding the differences

Constructive dismissal focuses on the employer’s breach and the employee’s forced resignation. Unfair dismissal examines whether a dismissal (by the employer) was fair and well-handled. Wrongful dismissal assesses contract compliance, especially notice obligations.

Employees may have grounds for one or more types of claims depending on the individual circumstances.

For example, a situation may involve:

• Constructive dismissal and unfair dismissal (if constructive dismissal is proven).
• Unfair dismissal and wrongful dismissal.
• Only wrongful dismissal.

Accurately identifying the correct claim type helps employees pursue the appropriate remedy.
 

There are further implications to pursuing a constructive dismissal claim that employees should be aware of. Once resignation has taken place, the steps that follow, such as preparing documentation, engaging with Acas Early Conciliation, and potentially attending a tribunal hearing, require time, organisation, and emotional resilience.

It is important to consider personal well-being, financial circumstances, and future career plans before proceeding.

Professional guidance at an early stage can help employees understand the likely outcomes, the strength of their case, and the remedies available to them. This ensures that any decision to move forward with a claim is grounded in realistic expectations. By fully assessing the situation before taking formal action, employees are better equipped to protect their rights and navigate what can be a challenging period with greater confidence and clarity.