Constructive Dismissal Claims: The Key Elements
Updated: Oct 10
Constructive dismissal claims: the key elements are easy to state but hard to prove. They are a big part of employment law and matter to both workers and employers. But what do they involve? And how does the two-year service rule affect your right to claim? This guide gives clear answers in plain words.
Constructive dismissal defined
Constructive dismissal is when you resign because of your employer's conduct. Your employer did not dismiss you in words. But their behaviour left you no real choice.
The key point is that your resignation must be a response to a serious breach of your employment contract by your employer. The law is set out in section 95 of the Employment Rights Act 1996. The government gives an overview of dismissal on GOV.UK.
The two-year service rule
To claim unfair dismissal, you usually need two years of continuous service with the same employer. Before that, an employer can often end your contract without showing a fair reason. The government has announced plans to change this period, so check the current rule on GOV.UK before you rely on it.
Some claims do not need two years. For example, a claim for discrimination does not have a service requirement. Talk to an adviser about which claims you can bring.
The breach of contract test
The Court of Appeal decided the key case in Western Excavating (ECC) Ltd v Sharp in 1978. It settled that unreasonable conduct alone is not enough. The test is about the contract.
In practice, to bring constructive dismissal claims you must show that:
Your employer breached the contract. This can include a breach that is still to come.
The breach was serious enough to be repudiatory. That means it justified you in resigning.
You resigned because of the breach.
You did not wait too long before you resigned.
Why delay matters
If you stay at work for a long time after the breach, the employer may say you accepted it. Courts call this affirming the contract. You can reduce the risk by raising a complaint quickly and saying that you do not accept the change.
Implied terms and mutual trust
Every employment contract has implied terms. These are terms that the law reads into the contract, even if they are not written down.
Courts accept that some unreasonable conduct breaks these implied terms.
The most important is the term of trust and confidence. An employer must not act in a way that damages the trust between them and you.
Many cases involve a series of incidents over time, not one single act.
Examples of conduct that can lead to a claim
Each case depends on its facts. Examples that may be serious enough include:
a big cut in pay without your agreement
a demotion with no good reason
a serious change to your duties or place of work that the contract does not allow
bullying or harassment that the employer fails to deal with
failing to protect your health and safety
false accusations of serious misconduct
If you want to know more about changes to your terms, read our guide on whether an employer can change your employment contract. For bullying, see workplace bullying, harassment and constructive dismissal.
Precedent cases for constructive dismissal claims
Omilaju v Waltham Forest London Borough Council
This Court of Appeal case explained the idea of the last straw.
Even if the final act does not itself breach the contract, the effect of a series of incidents can add up to a breach.
Mahmud v BCCI SA
The House of Lords held that some unreasonable conduct by an employer breaks the implied terms of the contract.
The employer's actions damaged mutual trust and confidence, and this can lead to constructive dismissal.
What counts as a serious breach?
A breach must go to the root of the contract. Lawyers call this a repudiatory breach. A small or one-off lapse is usually not enough. The question is whether your employer has shown that it no longer intends to be bound by the contract.
A tribunal looks at the whole picture. It asks what the employer did, how serious it was and what effect it had on you. Where there are several incidents, it will consider them together.
Notice period: should you resign with or without notice?
If your employer has seriously breached the contract, you may be able to resign without working your notice period. That is a risky step. If a tribunal later decides there was no serious breach, you could face a different claim for leaving without notice. Get legal advice before you decide how to resign.
What evidence do tribunals look for?
Strong evidence makes a claim easier to prove. Useful items include:
your written contract and any changes to it
emails, letters and messages that show what happened and when
notes of meetings and a dated diary of events
your grievance letter and your employer's reply
payslips, if pay was cut
the names of colleagues who saw what happened
How can an employer defend a claim?
An employer may say there was no breach at all. It may say that you accepted the change by staying on. It may also say you resigned for a different reason, such as a new job. Even if you prove a dismissal, the employer can argue that it was fair. This is uncommon, but it can happen.
What to do before you resign
Resigning is a big step. Think carefully, and take advice first. These steps can help:
Write things down. Keep a diary of events, with dates and names. Save emails and messages.
Raise a grievance. Use your employer's grievance process. This shows that you tried to fix the problem.
Get advice. Speak to an employment solicitor, a union rep or ACAS.
Check your finances. Plan for a period without pay while a claim runs.
Decide when to resign. Do not wait too long after the key event.
Time limits and early conciliation
Strict time limits apply. A claim to an employment tribunal must usually be started within three months, less one day, from the date your employment ended. Before you claim, you normally have to contact ACAS for early conciliation. The government explains the tribunal system on GOV.UK. You can also read our guide to the steps of an employment tribunal claim.
Are constructive dismissal claims hard to win?
They can be hard. You must prove a serious breach, and you must show that you resigned because of it. The tribunal will look at the evidence closely. Good records and a clear timeline make a big difference.
If you win, the tribunal can award compensation. The rules on the amount are complex and change over time. A solicitor can explain what you might receive.
How a solicitor can help
tell you whether you have a strong claim
help you plan the timing of your resignation
write a clear grievance or a letter setting out the breach
represent you at the tribunal
negotiate a settlement with your employer
When an employee resigns: making a constructive dismissal claim
A constructive dismissal claim starts when an employee resigns in response to a serious breach. The employee resigns, and then argues that the employer's conduct amounted to a dismissal. To make a claim for constructive dismissal, the employee must show each of the elements above. Many people make a claim only after trying a grievance first.
If you think you have a constructive dismissal claim, keep your evidence safe and take advice before you act. The decision to resign cannot easily be undone.
If you have been forced out of your job, get advice before you act. Early help can protect your rights.
