When does a constructive dismissal usually arise?
In most instances of constructive dismissal, an employer is deemed to have committed a very serious breach called a ‘fundamental breach’ of contract. This breach provides a reason for the employee to resign in response to the employer’s conduct. After this, they may claim constructive unfair dismissal.
Examples of when you might be able to consider yourself constructively dismissed include reducing your pay or not paying you at all, changing your work location or hours without checking with you, demoting you without any reason, making unfounded accusations of poor performance, making unreasonable changes to your role, forcing you to work in breach of health and safety laws, or making baseless accusations of misconduct.
Who can bring a claim for constructive unfair dismissal?
You can only pursue a claim for constructive unfair dismissal if you were an employee. You might have been an employee even if your employer or your contract said you were self-employed. You might not have been an employee if for example you weren't guaranteed to get any work. You usually need two years’ service unless you resigned in relation to matters that would make your dismissal ‘automatically unfair’.
When will a constructive dismissal be automatically unfair?
An automatic unfair dismissal can occur in relation to a number of impermissible reasons, including:
- dismissal because you asked for your legal rights at work (called asserting a statutory right), for example to be paid minimum wage
- you were dismissed because of your part-time or fixed-term status
- you took action about a health and safety issue
- you are pregnant or on maternity leave
- you exercised your right to paternity leave
- you have reported your employer for wrongdoing, which is called whistleblowing
Where you are claiming automatic constructive unfair dismissal, you must demonstrate that the reason for your employer's conduct which caused you resign, was action that would have entitled you to claim automatic unfair dismissal had your employer dismissed you for it.
How can we help you?
Timing of your resignation
In order to succeed in a constructive dismissal claim, you must resign promptly in response to the breach relied on. Resigning weeks after a repudiatory breach has occurred would be very problematic and can lead to a tribunal finding that you affirmed the contract. There is no set deadline and each case is dependent on the particular circumstances.
An employee on sick leave for work related stress, may be given some leeway if there is a slight delay in resigning. Resigning on the day your sick pay runs out or waiting until a new job has been offered, although understandable, can undermine a constructive dismissal claim. Claiming you have been constructively dismissed can be difficult and you should seek advice ideally before you resign.
Should you raise a grievance?
Deciding whether or not to raise a grievance can be difficult. Sometimes an employment tribunal might decide that you should have tried to address the problem by raising it with your employer before you resigned.
If it was reasonable for you to raise a grievance but you decided not to, a tribunal can reduce any damages you are awarded by up to 25%. We do understand however that sometimes a situation may be so intolerable that you feel there is no alternative but to resign.
Should I mention constructive dismissal when I resign?
It will help your case if you state clearly why you are resigning. Some employees make positive comments in their resignation letter but doing so will not help your case. You have to show that your relationship has completely broken down so thanking your employer for the opportunity or saying you will miss everyone will undermine this.
How long do I have to bring a claim?
To make a claim for constructive unfair dismissal you need to act fast as the time limit is short. You only have three months less one day from the date your employment terminates to bring a claim, so you should contact us as soon as possible. The first step in making a claim is to contact ACAS and start the early conciliation process.
How can we help?
We can help with ACAS early conciliation and will speak to the conciliator and assist by clarifying your claims and the issues between you and your employer. We can also help you negotiate a settlement. If your employer won’t offer you fair compensation we can help you to pursue a claim in the employment tribunal.
Employment Law FAQs
Didn’t find the answers you were looking for? Look at the FAQs below for more information on our employment law claims process.
You can make an unfair dismissal claim if you've been in continuous employment for at least two years.
Under the terms of the Equality Act 2010, it's your right to claim for unfair dismissal if you've been discriminated against during your employment.
The amount of compensation you could receive for unfair dismissal varies depending on several factors, including the specific circumstances of your case and the jurisdiction in which you are filing the claim.
When assessing the compensation for unfair dismissal, employment tribunals typically consider the following elements:
Basic Award: This is calculated based on your age, length of service, and weekly pay, and it is subject to a statutory cap. The exact calculation formula may differ depending on the jurisdiction.
Loss of Earnings: The tribunal will consider the actual financial loss you suffered as a result of the unfair dismissal. This may include the income you would have earned during the notice period or until you find alternative employment.
Future Losses: In certain cases, if it is determined that you will experience difficulties finding new employment or face a significant reduction in earnings, the tribunal may award compensation to cover future losses.
Benefits and Bonuses: If you lost out on benefits, bonuses, or other entitlements due to the unfair dismissal, the tribunal may consider including these in the compensation.
Each case differs and there is no set amount of compensation you will receive.
Workplace bullying is offensive, intimidating and malicious behaviour that's intended to undermine an individual or group of employees.
If you think you're a victim of workplace bullying, then you should raise this with your employer and bring evidence if possible.
Our hourly rate is £177 + VAT of £35.40.
We have different pricing options: –
- We can offer our service under a Damages Based Agreement – “No Win, No Fee”. If your claim is successful, we will charge you 35% of any compensation received inclusive of VAT.
- We can accept instructions on a private paying basis:
- Simple case – £5,000 + VAT of £1,000 – £7,000 + VAT of £1,400
- Medium complexity case – £7,000 (+ VAT of £1,400) – £12,500 (+ VAT of £2,500)
- High complexity case – £12,500 + VAT of £2,500 – £17,500 + VAT of £3,500
- If you have legal expenses insurance we can work alongside your insurer in line with the terms of the policy.
Counsel’s fees for a hearing could amount to anything as high as £1,500 + VAT of £300 per day.