Making a Claim for Constructive Dismissal

Constructive dismissal

When you find yourself in a work situation that you feel is unbearable, often you will resign from your post. If this happens, you may be able to prove that your employer’s conduct forced you to resign: this is constructive dismissal.

The main reason people may want to prove constructive dismissal is so they can claim for unfair dismissal against their employer.

First steps

If you’re thinking about trying to prove constructive dismissal but have not yet left your job, you should think carefully about resigning. You need to prove that your employer’s behaviour amounts to a breach of contract.

Before making any rash decisions, you should seek legal advice. Citizen’s Advice may be able to give you a better idea about whether your case constitutes constructive dismissal.

It’s always best to go through your firm’s official channels before you resign. If you find it hard to speak to your manager, take it to your company’s human resources department and/or go through the grievance procedure. If you’re a member of a trade union, consult your representative for advice and support, and see if they can intervene in any way. Organisations such as ACAS can also help to mediate the situation between you and your employer.

Once you have established you have a case for constructive dismissal, you should leave your job straight away – otherwise your employer may claim that, by remaining in your job, you accepted the conduct or treatment. You should tell your employer why you’re leaving and that you are planning to claim constructive dismissal.

Reasons for leaving

Under UK law, an employer is required not to behave in a way that destroys the relationship of ‘trust’ and ‘confidence’ between them and their employees. There are many things that an employer may do that will destroy this relationship.

If you want to claim constructive dismissal, the reasons for you leaving must be serious. The employer’s breach of contract may be one serious incident, but it is more common that an accumulation of things have made you feel your position is untenable.

Behaviour justifying a claim for constructive dismissal could include:

  • Where you are being bullied, harassed or victimised. Such behavior can include being humiliated in front of other employees, being falsely accused of ineptitude, sexual advances, verbal abuse etc. The bullying, harassment or victimisation could be perpetrated either by your employer or by fellow employees and your employer takes no action to help you after you complain.
  • Where an employer has failed to pay your wages, or otherwise failed to abide by the terms and conditions of your employment contract. This may include refusing to allow you to take holidays, or drastically changing your hours of work.
  • An employer’s failure to comply with health and safety requirements, ie, one that has not provided you a safe place to work, may also be considered to have forced you to resign.
  • Sudden changes in your pay, job title or the work that you are required to do without first discussing it with you is another cause. This applies to cases of sudden demotion, where you have been moved to a more junior post without the employer first bringing any issues to you about your performance. Another example of this type of misconduct is if the employer suddenly changes your place of work, forcing you to work at a different location.
  • Failure to make reasonable adjustments where you have a disability.
  • Not properly addressing stress at work.

Next steps

If you have been constructively dismissed, you can take your case to an employment tribunal and claim compensation from your employer. It will be up to you to prove that your employer has acted in a way that made your position untenable and goes to the root of your employment relationship.

You must have worked for your employer as an employee for a minimum period before you can do this. If you started your job on or after 6 April 2012, the qualifying period is normally two years. If you started your job before 6 April 2012, the qualifying period is usually one year.

Article written by...
Lucy Trevelyan LLB
Lucy Trevelyan LLB

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Lucy graduated in law from the University of Greenwich, and is also an NCTJ trained journalist. A legal writer and editor with over 20 years' experience writing about the law.