Constructive dismissal

Constructive dismissal is the phrase used when your employer has treated you so badly that you resign in response.  Your employer’s conduct is often referred to as a ‘repudiatory breach of contract’.

It may not just be a single incident that you respond to. Sometimes there is a pattern of behaviour or incidents which, when taken as a whole, amount to a breach. This is sometimes called the ‘last straw’.

You will need to show your employer’s behaviour has been more than just unreasonable. It needs to be a fundamental breach of your contract. Further, you must have left because of the breach. It helps to make it clear when you resign that you regard yourself as having been ‘constructively dismissed’.

We can help you negotiate an exit before you resign, or a settlement as an alternative to bringing a Tribunal claim.

What kind of breaches of contact can I resign over?

Many cases like bullying or discrimination will be obvious, and others will be more of a grey area. If the case reaches a Tribunal hearing, it will be determined on its own facts. Typical examples Tribunals hear are:

• Forcing you to agree to unreasonable changes to your job
• Reducing your pay, or not paying you at all
• Making unfounded allegations of poor performance or misconduct
• Demoting you without a good reason
• Forcing you to work in breach of health and safety laws

Not making reasonable adjustments where you have a disability

Unlawfully discriminating against you

How easy is it for me to win a constructive dismissal claim?

It all depends on the facts of your case, but if you can show that your employer has made your position unbearable, your claim may well succeed. Constructive dismissal claims are more difficult to win as it is on you to prove that your employer was in serious breach of your employment contract. You’ll need the best employment law solicitor on your side to give you the best chance of success.

You will usually need to have worked with the same employer for at least 2 years – unless your case falls within one of the few exceptions where no minimum service is required, including discrimination or harassment.

If your employment has ended, you will have just three months (less one day) to have either settled your dispute or taken formal steps to preserve your employment rights by starting the mandatory Acas Early Conciliation process. We can negotiate a settlement on your behalf if this is what you prefer.

It is always best to get professional advice early. If you delay, you could be seen to have consented to your employer’s breach of contract.

Should I raise a grievance?

Whether to raise a grievance or not is a difficult choice. We can help you make the right decision.

Ideally you should try and address the problem by speaking to your employer first, to give them an opportunity to resolve the dispute. 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 know there are times when the situation may be so intolerable that there is no alternative but to resign.

Do I need to specify that I am claiming constructive dismissal when I resign?

It will help your case if you state clearly why you are resigning.

Making positive comments about the time with your employer won’t help your case.

What could I win at Tribunal?

Tribunals can make a Basic Award and a Compensatory Award.

The basic award is calculated with reference to your age, length of service and gross weekly pay. The maximum basic award payment you can receive is £15,240.

From April 2023, the maximum amount that you can be awarded to compensate you for being unfairly dismissed  is £105,707, or 52 weeks gross salary – whichever is the lower. This is in addition to the maximum basic award of up to £19.290

The second element – a compensatory award – will be an amount which the Tribunal considers just and equitable in the circumstances of your claim. It will depend on the loss you suffered because of your dismissal.

These will usually include:

• Loss of wages
• Loss of future income
• Loss of statutory rights (it takes 2 years before you have unfair dismissal protection, or you can qualify for a redundancy payment)
• Loss of pension and other benefits

From April 2023, the maximum amount that you can be awarded to compensate you for being unfairly dismissed  is £105,707, or 52 weeks gross salary – whichever is the lower. This is in addition to the maximum basic award of up to £19.290.

In some cases, there is no cap on the compensation that can be awarded. These include cases where as well as constructive dismissal, there is a claim for discrimination, whistleblowing, a breach of a health and safety issue or where you are dismissed after trying to assert a statutory right.

What do I do now?

This is where we come in. Employment law is all we do.

It can often feel like your employer holds all the power.  They will likely have experienced HR professionals or a solicitor working in the background.  That’s why you need the best support and advice available.  You need a specialist employment lawyer – one who will push for the best outcome for you.

We understand how it feels. We have helped hundreds of employees but because we act for businesses too, we know the tactics you’re likely to face from your employer.  We know every trick in the book.

You only have a limited amount of time to take action to preserve your employment rights – usually just three months (less one day) from the date your employment ends. There could be a different deadline of you are bringing a claim of discrimination.

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