Where an employer does not terminate the contract of employment but behaves in such a way as to damage or destroy the employment relationship, an employee is entitled to resign with or without notice and claim constructive unfair dismissal against the employer. This is only applicable where the employer’s actions amount to a fundamental and repudiatory breach of the employee’s contract of employment.

There are some essential requirements for a constructive dismissal:

• there must be an actual or anticipatory fundamental breach of contract by the employer
• the employee must resign in response to the breach,
• the employee must not delay in terminating the contract in response to the employer’s breach. The employee must act quickly otherwise they may be regarded as having elected to affirm the contract changes made by the employer.
• have brought the claim within 3 months of the date of the dismissal

In order for us to assist you with your claim we ask if you could attach a copy of your contract of employment and any correspondence relating to your dispute. It’s important to remember that you might have to pay if you get independent or legal advice.

Work is either carried out on a fixed fee (which means that we will charge you a set amount of money for each piece of work we undertake) or on an hourly rate basis. All fees exclude VAT (where applicable).

Speak to a member of our employment team:

Call 07880 840164

What is the difference between constructive and unfair dismissal?

Constructive dismissal is where the employee has been forced to resign from their position due to their employer’s conduct making their position untenable. An employee still has to prove that their constructive dismissal was unfair. Unfair dismissal, on the other hand, is where an employee’s contract has been terminated by the employer without a potentially fair reason or where the decision to dismiss did not fall within the band of reasonable responses open to an employee.

Examples of fundamental and repudiatory breach of contract

Constructive dismissal claims involve a breach of contract by an employer which enables the employee to resign and bring a constructive dismissal claim before an employment tribunal. Some examples of a fundamental and repudiatory breach as found in other cases are:

• a breach of trust and confidence
• a unilateral significant reduction to salary
• demotion without a fair reason or reasonable process
• discrimination, harassment or bullying
• Employees being forced to work in breach of health and safety regulations and in dangerous circumstances
• Failing to respond and deal with grievances or internal procedures in a timely manner

When is the qualifying period for a constructive unfair dismissal claim?

To claim for constructive unfair dismissal the individual must be an employee and must have worked for an employer for at least two years. However, there are exceptions to this period where the claim requires no minimum service if, for instance, it relates to discrimination or whistleblowing. A constructive unfair dismissal claim must be brought within a period of three months from the date of resignation, as extended by any time spent in early conciliation with ACAS.

If you claim for constructive dismissal, what will you be expected to prove?

The burden of proof is on the employee to show that their employer acted in a way that made their position untenable and that their employer is in breach of the contract of employment either of an implied term or an express term. The employee must then prove that the employer was in repudiatory breach of contract, that the employee resigned, with or without notice, in response to that breach, that they did not delay too long before resigning or that they did not “affirm” the contract (for example by continuing to work without complaint and accept pay. The employee must also prove that they have not “waived” any breach of contract. Finally the employee then has to prove that the dismissal was unfair with regards to section 98 Employment Rights Act 1996.

What is the timescale?

Timescales for your case may vary depending on factors such as barristers’ availability, the complexity of your case, the need for additional documents and the other side’s approach. However, as a guide more straightforward cases tend to have a hearing date within four to six months of a claim being made. More complex cases may take a year or more to resolve. We are used to dealing with instructions quickly and adhering to Tribunal timetables.

What will it cost?

Please find pricing and fee information here.