Unfair Constructive Dismissal Claim

What is Unfair Constructive Dismissal? 

An employee may be able to establish an unfair constructive dismissal claim where they resign in response to their employer’s breach of a fundamental term of their employment contract.

The breach may be of an express term such as pay or an implied term (exists without express agreement) such as mutual trust and confidence.

A contract can be breached through a series of actions accumulating to a last straw effect, not just a one off event.

An unfair constructive dismissal claim must be brought within three months less a day of the effective date of termination (usually the date that the notice period expires or the resignation date if this was without notice).

Our Unfair Constructive Dismissal lawyers can provide you with the advice and support you need throughout your claim.

How do you prove to an Employment Tribunal there was an Unfair Constructive Dismissal?

An employee may treat themselves as dismissed under employment law if they can establish the following:

  1. The employer was in repudiatory (serious/fundamental) breach of the employment contract;
  2. The employee resigned in response to that breach; and
  3. The employee did not delay in resigning.

The Employment Tribunal may find that a breach was affirmed if the employee delayed in resigning.

Factors  to consider before resigning and claiming Unfair Constructive Dismissal

  1. Timing of the resignation: Resignation has serious consequences and should not be done without proper consideration. If an employee wishes to rely on the breach it is important to react promptly. Raising a grievance may be more appropriate if the breach is capable of being remedied.
  1. Notice: An employee may resign with or without notice, and consider their personal circumstances when deciding whether to provide notice.
  2. Grievance: A grievance can be raised before, at the same time or after your resignation. It is not a legal requirement to raise a grievance, however a grievance does shows the Employment Tribunal that reasonable steps have been taken to try to resolve the issue. It also shows that an employee has followed the ACAS Code of Practice, where the compensatory award may be increased by up to 25% if the guidance is not followed by the employer.

How much compensation can be awarded for Unfair Constructive Dismissal claims?

Unfair constructive dismissal is not a claim in itself. A tribunal will assess compensation with reference to a breach of contract claim or an unfair dismissal claim.

A breach of contract is most likely to apply where an employee has resigned without notice and is a claim for the pay and benefits they would have received if they had been given their notice. For unfair dismissal claims please see our separate guidance on unfair dismissal compensation.

Steps to take before issuing an Employment Tribunal claim

Before bringing a claim in the Employment Tribunal or court, you could consider trying to negotiate a settlement agreement with your employer to avoid the need for proceedings.

Our unfair constructive dismissal lawyers have a wealth of experience in successfully negotiating settlement agreements.

How can we help?

Please contact one of our experienced unfair constructive dismissal lawyers to discuss your potential claim. We strongly recommend seeking legal advice before resigning in order that we can ensure you have the strongest possible claim before you tender your resignation.

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