Constructive dissmissal

Resigning and claiming constructive dismissal is a very high-risk strategy and are rightly known as one of the hardest claims to succeed with at an Employment Tribunal. Many claims don't succeed because they fail the well-established legal tests. 

So before you think about making a constructive dismissal claim, we've got some guidance to help you understand what this type of claim is, and what you would need to demonstrate to a tribunal in order to succeed.

This guidance is not intended to replace legal advice, and before you make any decision to walk out of your job, you should contact the union for further advice and support for your specific situation.

As an employee, you can make a constructive dismissal claim if you resign because they think your employer has seriously breached your employment contract. In other words, you’re forced to leave your job against your will because of your employer’s conduct. The reasons you leave your job must be serious, for example, they do not pay you or suddenly demote you for no reason.

Resigning and claiming constructive dismissal is a very high-risk strategy and is rightly known as one of the hardest claims to succeed at an Employment Tribunal. A tribunal will expect you to have a good reason for resigning, and to justify the decision. Every case has unique facts as everybody’s situations are different.

There’s a three-stage test which needs to be satisfied for a claim for constructive dismissal to succeed. You must show:

1. That there was a fundamental breach of your contract by your employer
2. That your employer’s breach caused you to resign and
3. You resigned immediately after the breach occurred, or at the very least as soon as possible after it.

Before making any decision to walk out of your job, you should get advice from the union.

For a constructive dismissal claim you must show that your employer's conduct was so serious that it amounted to a fundamental breach that went to the heart of the employment contract. Establishing that there has been a serious and fundamental breach of contract is the hardest part of any constructive dismissal claim.

Such a breach of contract can occur in two main ways.

• A one off, fundamental and substantive breach. This occurs where there is one incident that is so serious, that you feel that you were left with no choice other than to resign from your employment. An example of this would be a substantial reduction in your pay without any prior consultation or agreement.
• A series of breaches with the last breach being the breach that causes you to resign. In this case, each individual breach may not be sufficient to justify resignation but when all the breaches are viewed together, they are of such size that the combination of them justifies resignation. In such a case it’s vital that you keep a clear ongoing record of each breach. You’ll need to prove that your employer’s behaviour has been ongoing for some time and it’s very difficult (if not impossible) to do so without records.

The starting point is to check your written contractual terms carefully – your employer can’t breach your contract if they’re expressly allowed to do so in your contract. For example, some contracts allow your employer to take actions without your agreement even if you object to it.

The implied terms of a contract can also be breached. Implied terms might include that you are treated with respect by your employer. In this example, if an employer, screams, swears, and abuses you in front of other colleagues, this could be deemed a breach of the implied duty of trust and confidence – however resignation is a significant step and not one to be taken lightly so take advice and when directed to, follow your employer’s formal issue resolution process (also referred to as a grievance).

As we have outlined already, the start of a claim is to show that there was a fundamental breach of contract. The next step is to show that the breach of contract caused you to resign, and finally that you resigned immediately (or as near to).

To show that the breach caused your resignation it’s crucial that your letter of resignation explicitly refers to the breach as being the cause of your resignation.

The timing of your resignation is important too. You’re unlikely to succeed in your claim where your resignation occurs months after the breach you’re claiming occurred. To continue working without taking further action is likely to be viewed by a tribunal as an acceptance of the breach by you.

Sometimes, you may be able to work under protest, having told your employer (in writing) that you’re doing so. However, that protest can’t go on indefinitely. An example would be if your contract has changed fundamentally and you disagree with that, rather than resign at once you’re entitled to work under protest until any grievance you raise about the issue has been dealt with. If the grievance isn’t resolved to your satisfaction, you could then resign having duly worked under protest prior to that date.

Resigning is always a high-risk and last resort strategy. There are steps that can be taken prior to this, and before making any decisions, you should get advice from the union.

Winning a claim for constructive dismissal is very difficult. Most constructive dismissal cases fail because they are complex. It’s crucial that you seek early advice from the union. We will help you in deciding whether you may have cause for a claim, and what actions you should take in the circumstances. When necessary, we’ll seek advice from our legal advisors to establish whether you’d have reasonable prospects of a successful claim.

A claim for constructive dismissal is different to other types of tribunal claims. For example, with an unfair dismissal claim the onus is normally on the employer to show that the dismissal was fair. In the case of a constructive dismissal claim the onus is on you as the resigning employee to firstly show that there was a dismissal and secondly that the dismissal was unfair.

In practice, most things that people feel are breaches in this context do not satisfy the fundamental breach test. The fact that your employer has acted unreasonably doesn’t mean that a tribunal would find that the behaviour was sufficiently serious to justify your resignation.

Resignation is a significant step, and not one that should be taken lightly – it’s always as a last resort when other actions have failed or when your employer’s action are so severe.