Claiming constructive dismissal
If your employer has done something that seriously breaches your contract, you might be able to resign and make a claim to an employment tribunal. This is called constructive dismissal.
To be successful you'll need to prove your employer seriously breached your contract and that you resigned in response to it.
A lot of people think resigning and claiming constructive dismissal is a good option for dealing with problems at work. But resigning is a big step. You might be able to solve your problem without resigning.
It’s difficult to prove constructive dismissal - not many claims win. You’ll also need to work out how much money you might get. Talk to an adviser for help deciding if it’s worth making a claim.
If you want to make a constructive dismissal claim, you’ll need to follow these steps:
1. Work out if you have a constructive dismissal claim
You might be able to make a claim for constructive dismissal if you resigned because your employer:
- allowed people to bully or harass you at work
- made unreasonable changes to how you work, for example by forcing you to work longer hours
- demoted you
- refused to pay you
- didn’t make sure your working environment was safe
- took away benefits your contract says you get, like your company car
- didn’t give you the support you needed to do your job
If your employer changed how you work
You might have a constructive dismissal claim if you resigned because your employer forced you to work different hours, in a different place or for less money.
However, a tribunal could find these changes were fair if your employer:
- made a change which your contract specifically says they could
- consulted you before making the changes
- made the changes as an alternative to something worse, like making people redundant
If you're being bullied or feel threatened
There’s no legal definition of bullying. This means some employers try to justify their behaviour or say it isn’t an issue.
For example, if you feel bullied because your manager constantly criticises you, they might say you’re too sensitive about their management style. Or if you’re often called names that make you feel uncomfortable, your employer might say it’s just banter.
It’s up to you to decide if the way you’re being treated is serious enough for you to resign.
It’s a good idea to report bullying or threatening behaviour before you decide to resign. This would give your employer the chance to stop it. If you don’t feel comfortable speaking to your manager, you could try reporting it to their manager or your HR department. If they don’t do anything about the bullying, you could have a strong constructive dismissal claim.
However, there are some situations where resigning and leaving without notice will clearly be the best option. For example, if you feel that:
- you’re being repeatedly bullied by your colleagues or employer
- you’re frightened to go into work
- you don’t feel safe at work
Tell your employer in writing that you’re resigning because of bullying. This will mean you’ve got evidence of why you resigned if you want to make a constructive dismissal claim.
2. Check if you’re eligible to claim constructive dismissal
You can only claim constructive dismissal if you were an employee.
You might have been an employee even if your employer or your contract said you were self-employed. You might not have been an employee if for example you worked for an agency or you weren't guaranteed to get any work.
If you’re not sure if you were an employee, check your employment status.
You can also only usually claim constructive dismissal if you’ve worked for your employer for at least 2 years. This includes your statutory notice period.
If you’ve worked for your employer for less than 2 years
You probably can’t make a constructive dismissal claim, except in a few situations.
You don’t need to have worked for your employer for 2 years if your claim is because of:
- a reason that’s always ‘automatically unfair’
Check if it’s ‘automatically unfair’
It’s always ‘automatically unfair’ if you had to resign due to being treated unfairly in a way that amounts to a breach of contract because you:
- are pregnant or on maternity leave
- have asked for your legal rights at work, eg to be paid minimum wage
- took action about a health and safety issue
- work in a shop or a betting shop and refused to work on a Sunday
- are a trade union member and took part in trade union activities including official industrial action or you were acting as an employee representative
- have reported your employer for wrongdoing, which is called whistleblowing
If you’ll have worked for your employer for at least 2 years when your job ends, it’s also automatically unfair if you’re dismissed because:
- the business was transferred to another employer
- you didn’t declare a spent conviction
Check for discrimination
You can make a constructive dismissal claim if you resigned because your employer discriminated against you.
It might be discrimination if you were treated unfairly because you are or are seen to be:
- pregnant or on maternity leave
- from a particular race, ethnicity or country
- married or in a civil partnership
- a man or a woman
- lesbian, gay, bisexual or trans (LGBT)
- have a particular religion or set of beliefs
- older or younger than the people you work with
In practice, it’s not always easy to tell if you’ve been treated in a way that’s automatically unfair or discriminatory. If you feel the real reason could be automatically unfair or discrimination, it’s a good idea to talk to an adviser.
3. Get advice
You’ve got 3 months minus a day from the date your job ended to start tribunal action.
Get advice as quickly as possible if you think you might have a constructive dismissal claim
If you’re a member of a trade union, they might be able to give you legal advice about your situation.
Check any insurance policies you have - they might cover the cost of going to a lawyer.