Constructive Dismissal

The general rule is that if an employee has resigned, they cannot make a claim for dismissal. However, constructive dismissal is the exception to that rule. The principle of constructive dismissal is that the employee had no option but to resign due to a fundamental breach of the employment contract. 

What Is Considered Constructive Dismissal?

Constructive dismissal occurs in many shapes and forms and will depend a lot on the individual circumstances and the employment contract. Critically for a claim for constructive dismissal there must be a fundamental breach of contract and you must have worked for your employer for at least two years. In the employment contract there is both express and implied terms. A breach of either the express or the implied terms will be a breach of the employment contract. 

Claiming constructive dismissal on the grounds that the employer acted ‘unreasonably’ would not constitute as sufficient evidence for the need to resign from your position. You must show that the employer acted in a way that breaches the employment contract and has resulted in the collapse of the employment relationship, this can be difficult to prove.

Your employer could have breached the express terms of your contract, for example by: 

• Allowing bulling and harassment in the workplace
• Making unreasonable changes to your working conditions, e.g. longer working hours
• Discriminating against you
• Demoting you
• Refusing to pay you
• Not improving an unsafe working environment
• Removing benefits
• Not providing you with support for your role

When you make a claim for constructive dismissal you must look at whether your employment contract allows changes to the issue you are complaining of. You must also think about whether you were consulted before the change was made or if the changes were made as an alternative to something worse. If one of the above applies then you may not have a claim for constructive dismissal as you will have consented to the change.

Implied contractual conditions do not appear in the contract, they are implied in every contract of employment. They include duties on the employer, such as:

• Duty of mutual trust and confidence
• Duty not to treat an employee in an arbitrary or unequal manner
• Duty to take reasonable care of an employee’s health and safety

Tips For Making A Successful Constructive Dismissal Claim

If you resign from your post you are not automatically entitled to compensation unless you win your case. These cases can take a long time, particularly if a settlement agreement cannot be reached. Make sure you consider your financial situation before you resign. It is also important to get independent legal advice at this stage. An employment solicitor will be able to assess your case and advise you on how to proceed.

Before you resign make sure you have been through all the internal grievance procedures if possible. In some situation this will not be an option, however, you must be in a position to explain why it was not possible to sort out the issue internally.

When you do resign, make sure it is clear that you are resigning because of the grievance. It may be common practice to thank your employer for the opportunity they gave you, but in this circumstance, you must refrain from doing so. Outline the grievance and the steps you have taken to resolve the grievance. If in doubt you can seek legal advice on the content of your letter. 

Don’t wait too long to resign or to bring a claim. If you wait too long to resign it will be argued by your employer that you ‘accepted’ the breach by remaining in the employment. Remember, constructive dismissal is when the breach was so fundamental you have no other choice but to resign. If you remain in employment it will be more difficult to meet that test. Additionally, when you do resign make sure you do not wait too long to bring a claim as you only have a certain period of time. You have 3 months to begin a claim in the Employment Tribunal, if you miss this deadline you can still go to the County Court but this is often more expensive.

Before lodging your constructive dismissal claim to the Employment Tribunal, you first need to go through the ACAS Early Conciliation process to try to resolve your claim. If this fails to resolve your claim you can then progress your claim to the Employment Tribunal. 

How Can Monarch Solicitors help with Constructive Dismissals?

Our specialist employment solicitors have decades of experience dealing with constructive dismissals. They are well equipped to deal with a whole manner of different employment cases no matter how big or small. 

Our team have had great success negotiating settlement offers, taking claims to the Employment Tribunal, and many more. Every person we represent receives the same high quality of treatment and personal service.

Legal Costs & Service Transparency

If you are considering taking Court action due to a breach of employment law the legal costs should be weighed against the amount likely to be received in damages.

We know it’s important to your business that the legal costs of the dispute are kept under control so as to not affect your cash flow.

We’ll not only ensure that you’re aware of costs implications from the outset, we’ll provide you with step-by-step cost estimates or fixed fees for each stage of the work. We’ll also consider funding options to suit your business needs so you can be sure that our legal services are cost effective.

For more information regarding legal funding options, please click here for more information.

About Our Employment Team

At Monarch Solicitors, our employment lawyers have vast experience, expertise, and knowledge in resolving all kinds of domestic and international employment disputes, whether it be complex or technical or simply a disagreement over pay and working conditions.

We have particular expertise in relation to the following areas:

• Bullying and harassment
• Discrimination
• Employee grievance
• Employment tribunal representation
• Equal pay disputes
• Garden leave
• Maternity and family rights
• Redundancy
• Restrictive covenants
• Settlement agreements
• Unfair dismissal
• Unpaid wages
• Whistleblowing

Contact Our Employment Solicitors

Our expert employment lawyers are available to discuss your constructive dismissal claims.

Please contact our employment advisors for immediate assistance by sending an email to us at [email protected] and one of our employment solicitors shall call you back. 

Alternatively, please call our employment solicitors in Manchester on 0330 127 8888 for a no obligation discussion.

Monarch Solicitors are a leading UK law firm and our award-winning Manchester solicitors, London solicitors and Birmingham solicitors offer their legal expertise nationally and internationally.

We are also able to leverage an international network spanning across Hong Kong, Turkey and Dubai to provide seamless assistance with cross-border matters relating to constructive dismissal.