missal can arise when an employer seriously breaches the employment contract or creates a working environment that makes continued employment impossible or unreasonable. Although many people have heard the term, there are often misconceptions about what it actually means and when a legal claim may exist.
This guide explains constructive dismissal, the legal principles behind it, common examples, the steps employees should consider before resigning, and how the claims process works.
If you require advice about your own circumstances, the employment solicitors at Maison Lex’s Employment Law for Employees service can provide tailored legal guidance based on your situation.
What Is Constructive Dismissal?
Constructive dismissal occurs when an employee resigns because the employer has committed a serious breach of the employment contract.
Unlike an ordinary dismissal, the employer does not directly terminate the employment. Instead, the employer’s conduct effectively forces the employee to leave.
A successful constructive dismissal claim usually depends on proving that:
- The employer committed a fundamental breach of contract.
- The employee resigned because of that breach.
- The employee did not wait so long that they appeared to accept the employer’s behaviour.
Not every disagreement or difficult workplace situation amounts to constructive dismissal. The breach must normally be sufficiently serious to undermine the employment relationship.
What Does the Law Say?
Constructive dismissal is recognised under the Employment Rights Act 1996.
In simple terms, the law provides that an employee may be regarded as dismissed where they terminate their employment because of the employer’s conduct.
The courts have developed this area of law over many years. Each case depends heavily on its own facts, which is why obtaining early legal advice is often important before making any decision to resign.
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What Is a Fundamental Breach of Contract?
A constructive dismissal claim usually begins with identifying a fundamental breach.
A fundamental breach is one that goes to the heart of the employment relationship.
This may involve breaking an express contractual term, such as salary obligations, or breaching an implied duty, such as the duty of mutual trust and confidence.
The law expects employers to treat employees fairly, honestly and reasonably. Conduct that destroys trust and confidence may amount to a fundamental breach even where there is no written contractual term covering the situation.
Examples of Constructive Dismissal
Every workplace dispute is different, but common examples include:
Serious Workplace Bullying
Persistent bullying, intimidation or humiliating behaviour that an employer ignores may create circumstances giving rise to a constructive dismissal claim.
Failure to Pay Wages
Repeated late payment of salary or an unlawful reduction in pay without agreement may amount to a serious contractual breach.
Unreasonable Changes to Job Duties
An employer cannot simply make significant changes to an employee’s role without proper contractual authority or consultation.
Examples include:
- Significant reduction in salary
- Demotion without justification
- Major change in working hours
- Forced relocation
- Removal of key responsibilities
Discrimination or Harassment
Where an employer fails to deal appropriately with unlawful discrimination or harassment, the resulting conduct may contribute to a constructive dismissal claim.
Unsafe Working Conditions
Employers have legal responsibilities regarding health and safety. Serious failures that place employees at unnecessary risk may amount to a fundamental breach.
Unfair Disciplinary Action
Disciplinary procedures should be fair, reasonable and consistent. Serious procedural failures or unjustified disciplinary action may undermine trust and confidence between employer and employee.
Can Every Employee Bring a Constructive Dismissal Claim?
Not necessarily.
Eligibility depends on several factors, including employment status and the specific legal claim being pursued.
For many unfair dismissal claims, employees generally require a qualifying period of continuous employment. However, important exceptions exist, particularly where discrimination, whistleblowing or certain automatically unfair dismissals are involved.
Because eligibility rules can be complex, legal advice should always be obtained before assuming that a claim is or is not available.
Should You Resign Immediately?
Many people believe they should resign as soon as problems arise.
That is not always the best approach.
Resigning too quickly may prevent issues from being resolved internally.
On the other hand, remaining in employment for a lengthy period after the alleged breach may suggest that you accepted the employer’s conduct.
The correct timing depends entirely on the individual circumstances.
Before resigning, employees should usually consider:
- Raising a formal grievance
- Keeping written evidence
- Saving relevant emails
- Recording important meetings
- Seeking independent legal advice
The Importance of Following Internal Procedures
Most employers have formal grievance procedures.
Using these procedures can sometimes resolve disputes without litigation.
It may also demonstrate that the employee acted reasonably before resigning.
However, there are situations where continuing employment becomes impossible, particularly where relationships have completely broken down.
Each situation should be assessed individually.
Evidence Can Make a Significant Difference
Constructive dismissal claims often depend on documentary evidence.
Useful evidence may include:
- Employment contract
- Emails
- Meeting notes
- Performance reviews
- Witness statements
- HR correspondence
- Grievance documents
- Pay records
The stronger the documentary evidence, the easier it may be to establish what actually occurred.
What Happens After Resigning?
Resigning does not automatically mean a successful claim exists.
Employees considering legal action will usually need to follow the required legal process.
Strict time limits apply, meaning delays can affect legal rights.
What Compensation Could Be Available?
Compensation depends entirely on the facts of each case.
Possible awards may take account of:
- Financial losses
- Loss of earnings
- Benefits
- Future losses
- Other factors recognised under employment law
Every claim is assessed individually, and outcomes vary depending on the evidence and legal issues involved.
No solicitor can guarantee a particular result.
Constructive Dismissal vs Unfair Dismissal
Although the terms are often used interchangeably, they are not the same.
Constructive dismissal involves the employee resigning because of the employer’s conduct.
Unfair dismissal usually involves the employer dismissing the employee directly.
Some constructive dismissal cases may also amount to unfair dismissal, but the legal requirements differ.
Understanding the distinction is important before taking legal action.
When Should You Speak to an Employment Solicitor?
Early legal advice can help you understand:
- Whether the employer’s conduct may amount to a fundamental breach.
- Whether resignation is advisable.
- What evidence should be preserved.
- Whether time limits are approaching.
- The options available for resolving the dispute.
At Maison Lex, our experienced employment solicitors advise both employees and employers across a wide range of workplace disputes.
You can learn more about our legal services by visiting our Employment Law Services page.
If you are an employee seeking advice, visit our Employment Law for Employees page.
If you are an employer dealing with workplace disputes, disciplinary issues or grievances, our Employment Law for Employers team can assist.
Where workplace discussions lead to a negotiated exit, our solicitors also advise on Settlement Agreements.
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Frequently Asked Questions
Is constructive dismissal difficult to prove?
Constructive dismissal claims can be legally complex because the employee must usually demonstrate that the employer committed a fundamental breach of contract and that the resignation was a direct response to that breach.
Can I claim constructive dismissal without resigning?
In most cases, constructive dismissal involves the employee resigning. Remaining employed while bringing this specific type of claim is generally not possible.
Does workplace stress automatically amount to constructive dismissal?
No. Workplace stress alone does not necessarily establish constructive dismissal. The legal question is whether the employer’s conduct amounted to a fundamental breach of the employment contract.
Should I obtain legal advice before resigning?
In many situations, yes. Resigning without understanding your legal position may affect your options later. Early legal advice can help you make an informed decision.
Final Thoughts
Constructive dismissal is one of the more complex areas of UK employment law. While many employees experience workplace difficulties, not every dispute creates a legal claim. The key issue is whether the employer’s conduct amounted to a serious breach of the employment contract that left the employee with no reasonable alternative but to resign.
Every case depends on its own facts, and acting too quickly or waiting too long can both have legal consequences.
If you are considering resigning because of your employer’s conduct, obtaining professional legal advice at an early stage can help you understand your rights and the options available.
To discuss your circumstances with experienced employment solicitors, visit the Maison Lex website and arrange confidential legal advice.
