Constructive dismissal

What is constructive dismissal?

Constructive dismissal is normally a type of contract breach, where an employee is forced to leave their job against their will as a direct result of their employer’s conduct. This does not necessarily mean an employer has acted unfairly – the actions of the employer only amount to constructive dismissal in the serious cases of: 

• Nonpayment of wages 
• Sudden dismissal without explanation
• Sudden demotion without reason 
• Having an excessive workload 
• Allowing other employees to bully or harass you 

The Process

For a constructive dismissal claim to be accepted, you have to have enough evidence to prove that either the action or non-action from the opposing party left you with no choice but to resign. 

If your employer can prove that they took steps to help you during the situation, then it will weaken your claim massively.  

For example, if you raise a discrimination or harassment complaint to your employer which was ignored, forcing you to resign, you could claim constructive dismissal. However, if this happens and your company responds to your complaint by punishing the bully, you would not be able to claim constructive dismissal, as the company has attempted to resolve your situation.  

No matter what, you must be able to prove that you have followed all of the formal and informal processes before you can submit a constructive dismissal claim. 

Before you consider resigning, we would advise you to seek advice from one of our lawyers. Resignation is a huge step, and constructive dismissal can be a difficult claim to win. However, our partnered lawyers specialise in all forms of dismissal and will be able to ascertain whether the actions of the employer warrant an unfair dismissal claim.

How do i make a claim?

If you’ve had to resign because of constructive dismissal, its important to act quickly, because you only have three months from the date of your dismissal to make a claim. The first step is to start the mandatory ACAS early conciliation process; you need to do this before you can take a claim to the employment tribunal. If the ACAS early conciliation process fails, a lawyer will be able to help you make a claim at an employment tribunal.

why might my constructive dismissal case be more complex?

There are a variety of reasons why your constructive dismissal case might be particularly complicated. These could include:

1. When loss is involved in the case, such as money or pension.

2. Dismissal cases that are linked to allegations of discrimination

3. Whistleblowing cases 

4. A long history that is connected to the claim

5. A large amount of evidence or documentation involved in your claim.

6. A large amount of witnesses being called for both parties.

How can a lawyer support you with your constrctive dismissal case?

The biggest problem that people have when it comes to constructive dismissal is the evidence, or lack of evidence.

Because constructive dismissal is so hard to prove, any cases surrounding it have to rely really heavily on evidence. You as the employee would have to prove that you have resigned, or are thinking of resigning, because of a fundamental contract breach by your employer.

Most people who experience constructive dismissal feel like they are being forced to resign from their posts. This could be because the workload is too large, they aren’t giving you any shifts at work or your wages have been reduced without prior discussion. You could start by gathering as much evidence as you can to prove that this has happened.

Once you have your evidence, a lawyer will be able to help you by having a conversation and figuring out your next moves, which will often include resignation and then going through a constructive dismissal claim. Your lawyer will be with you from start to finish, from gathering your evidence, all the way to supporting you in court should it come to that.