What Is Constructive Dismissal?
Constructive dismissal occurs when an employee resigns because their employer has committed a fundamental breach of the employment contract. The breach must be serious enough that the employee cannot reasonably be expected to continue working.
It is not enough for your employer to have behaved unreasonably. The conduct must amount to a fundamental breach of contract. Whether that threshold is met depends on the specific facts of your situation, which is why taking constructive dismissal legal advice early is so important.
What is a Fundamental Breach of Contract?
A fundamental breach occurs when your employer acts in a way that undermines the basic terms of your employment. This can be explicit or it can be implied. Every employment contract contains an implied term of mutual trust and confidence. A sustained course of conduct that destroys that trust can amount to a fundamental breach even if no single act would do so on its own.
What is the Implied Term of Trust and Confidence?
The implied term of mutual trust and confidence is one of the most important concepts in constructive dismissal law. It means your employer must not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee. Persistent unreasonable behaviour, deliberate exclusion, or a targeted campaign of pressure can all breach this term.
Do I Need to Have Raised a Grievance First?
Not necessarily, but it is often advisable. Failing to use your employer’s grievance procedure before resigning can affect the value of your claim. It can also make it harder to demonstrate that your employer was given an opportunity to remedy the situation and failed to do so. Our solicitors can advise on whether and how to raise a grievance before you take any further steps. Read our guide on disputes in the workplace for more on how internal processes work.
Do I Need Two Years of Service?
In most cases, yes. To bring a standard constructive dismissal claim you generally need two years of continuous employment. However, if your resignation was connected to a protected characteristic, this could be discrimination on grounds of race, sex, age, religion or disability. You may be able to bring a discrimination claim alongside or instead of an unfair dismissal claim, with no qualifying period required. Our solicitors will identify all available claims when they assess your position.
What is the Difference Between Constructive Dismissal and Unfair Dismissal?
Unfair dismissal occurs when your employer dismisses you and that dismissal is found to be unfair. Constructive dismissal occurs when you resign because of your employer’s conduct. Both can give rise to a claim for unfair dismissal at the Employment Tribunal, but the circumstances and evidence required are different. See our guide on all you need to know about unfair dismissal and settlement agreements for more.
