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What is constructive dismissal?

Constructive dismissal (sometimes called constructive unfair dismissal) is when you feel pushed to resign because of your employer's actions or behaviour. For example, if they:

• Stop paying you;
• Demote you for no good reason;
• Drastically change your shifts or work pattern in a way that's different from what you agreed on;
• Discriminate against you;
• Let co-workers harass or bully you;
• Breach your work agreement.

If you find yourself in a situation where you no longer feel you can continue working because of actions like this, it's a good idea to speak to an employment solicitor. They can help you figure out if you can resign and make a claim for constructive dismissal. Or, if you've already left your job, they can provide clarity on what your next steps might be.

What counts as constructive dismissal?

It can be incredibly difficult when where you work becomes a place where you don't feel safe or happy. While not every tough situation might mean you have a matter for constructive dismissal, you might have a strong matter if:

• Your employer is turning a blind eye to harassment or bullying from colleagues;
• You've been unjustly demoted;
• You're not getting paid what you've earned;
• Your work conditions are drastically changed, like switching your day shifts to nights;
• The workplace is unsafe and your employer isn't fixing it;
• You're not getting the support you need to do your job properly;
• The benefits outlined in your employment contract are taken away.

If you've been employed in a workplace for at least two years and any of these circumstances come about, you may have a constructive dismissal claim.

That being said, it's not a decision to take lightly and you need solid proof to back up your claim. Before taking the leap, get a free matter assessment from our legal assessment team to better understand your options and how our employment solicitors may be able to help.

What should I do if I'm considering resigning because of problems at work?

If issues at work have become so hard to deal with that you're considering resigning, you should first talk to your employer. Sometimes problems can be easily sorted out through an informal conversation.

If that doesn't work, then you might consider raising a grievance. This is essentially a formal complaint that your employer has to address.

If neither of these avenues leads to a solution, you may then decide you have no choice but to resign. If this is the matter, we highly advise speaking to a solicitor before taking action to help you make an informed decision.

If you decide to resign, you should be upfront in your resignation letter about why you're leaving. If there's a major contract breach and you want to leave without serving notice, it could be seen as a breach of your employment contract, but sometimes it's justified.

The best move in this situation is to get some legal advice to make sure you're on solid ground.

Who can claim constructive dismissal?

You can typically make a constructive dismissal claim to a tribunal if you're an 'employee' and you've worked for your employer for at least 2 years.

In certain situations, you don't need to have been employed for two years to make a claim. This includes situations where:

• You spilled the beans on wrongdoing (whistleblowing) and your employer is treating you poorly because of it;
• You're facing discrimination based on protected characteristics like sex, disability, race, pregnancy, etc;
• The employer is in breach of contract without your agreement.

There are also time limits to make a claim. You've got three months minus one day from either the last day of your notice period or the day you resigned (if you didn't give notice).

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How do I make a claim for constructive dismissal?

If you've had to quit your job because of unfair treatment, or you believe you've been unfairly dismissed, it's important to act fast.

You've got three months, minus one day, from the day you resigned or were dismissed to take action.

The first step in claiming constructive dismissal is to undertake early conciliation through ACAS. This is a mandatory step for most claims, which aims to try and solve the problem before claiming with the employment tribunal.

If early conciliation doesn't sort the matter out, it's a good idea to seek the help of an employment solicitor who can help guide you through making an unfair or constructive dismissal claim at the employment tribunal.

For a constructive dismissal claim to be successful you have to prove that:

1. Your employer seriously breached your employment contract;
2. Your resignation was a direct response to that breach.

Proving constructive dismissal isn't always easy and not many claims are successful. Before making a claim, you should carefully consider the situation, including how much compensation you be able to get to help you figure out if it's worth pursuing.

How do I prove constructive dismissal?

Only around 5% of constructive dismissal claims are successful at the employment tribunal.

The biggest reason for this is that often there's not enough proof to show that an employer's actions were so bad that resigning was the only action. If there were other routes to solving the problem, like filing a grievance, the tribunal might say you should have tried that instead.

Another common reason is if you waited too long to resign. A tribunal might see this as an employee accepting the misconduct.

How do I prove constructive dismissal?

Only around 5% of constructive dismissal claims are successful at the employment tribunal.

The biggest reason for this is that often there's not enough proof to show that an employer's actions were so bad that resigning was the only action. If there were other routes to solving the problem, like filing a grievance, the tribunal might say you should have tried that instead.

Another common reason is if you waited too long to resign. A tribunal might see this as an employee accepting the misconduct.

Can I make a constructive dismissal claim if I've signed a settlement agreement?

Sometimes in the course of workplace disputes, employers and employees settle the matter through a settlement agreement.

But, if you sign a settlement agreement, you can't then make a constructive dismissal claim to an employment tribunal.

What is the average payout for constructive dismissal?

If you win your constructive dismissal matter at an employment tribunal, your award will consist of two parts:

• Basic award;
• Compensatory award.

Basic Award

The amount awarded uses a statutory calculation that factors in the length of your continuous service, your age, and a week's pay as of the effective date of termination. Here's how it's calculated:

• One and a half week's pay for each year of employment after age 41;
• One week's pay for each year of employment between ages 22 and 40;
• Half a week's pay for each year of employment under the age of 22.

Weekly pay, used for calculating the basic award, is typically the employee's normal weekly gross pay at the time of dismissal up to a maximum limit of $643. Overtime is usually not included in this calculation.

Compensatory Award

The compensatory award is typically the bigger chunk of compensation and boils down to the money you lost after leaving your job.

To strengthen your matter, you'll need to keep detailed records of your job search efforts since you left your role.

Can you claim constructive dismissal if you're fired?

Usually, you can't claim constructive dismissal if you've been formally fired. Constructive dismissal arises when your employer behaves in such a way that you feel forced to resign.
However, if you feel you have been unfairly fired, you may be able to make an unfair dismissal claim.

Get help with your constructive dismissal matter

At Lawhive, our network of specialist employment law solicitors is on hand to review your matter and advise you on the best way forward. In some matters, they can help you negotiate a settlement agreement or help you make an employment tribunal matter.

To find out how we can help with your constructive dismissal matter, get in touch with our legal assessment team for a free matter assessment.

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