Constructive Dismissal: 10 Essentials to know before pursuing your claim

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Constructive Dismissal

Last Updated: 19th February 2021

10 Essentials you need to know before pursuing your claim for constructive dismissal

Are you considering resigning and pursuing a constructive dismissal claim against your employer? If so, there are a number of crucial considerations you need to weigh up before embarking on this action.

It is notoriously difficult to prove constructive dismissal. Statistically, only a very small percentage of these claims are successful at Employment Tribunal. There is very good reason for this; the legal threshold is high.

Constructive Dismissal

The onus is very much on you to clearly prove that your employer’s conduct was such a fundamental breach of your employment rights, that your only option was to resign.

This guide sets out 10 crucial fundamentals to consider before pursuing your claim. It will help you determine whether you have a case, what constitutes a fundamental/repudiatory breach, things to avoid, and the process you should follow. 

Where the legal threshold is so high, forwarned is forearmed! That’s why the following insight will help you know if you have a constructive dismissal case and its chance of success.

What is constructive dismissal?

In simple terms, constructive dismissal is a claim that can be brought at Employment Tribunal where you felt your employer left you no other option but to resign, after their actions fundamentally breached your contract.

As a category of unfair dismissal, the correct term for this type of claim is ‘constructive unfair dismissal’, but you need to be aware that it is significantly different from a normal dismissal.

Constructive dismissal claims are the least likely to be successful at Employment Tribunal. You will need to clearly demonstrate that you resigned as a consequence of a fundamental or ‘repudiatory breach’.

Constructive dismissal claims are governed by:

Section 95(1)(c) of the Employment Rights Act 1996

Your employer’s breach can relate to either an express term, or an implied term within your employment contract. But, the key thing to remember is that the strength of your case will hinge on it being a repudiatory breach, not a ‘minor’ breach.

Before pursuing a constructive dismissal claim you must ask yourself that whilst you believe your employer’s conduct has been bad “Has it been bad enough to make continuing my job impossible?”

Single repudiatory breach vs series of events?

Where your employer’s behaviour is bad enough to make continuing your employment with them untenable, it may have occurred from a single repudiatory breach. In this case delaying your resignation serves no benefit to your claim.

However, it is also possible to advance a claim for constructive dismissal based on a series of minor breaches, where you are reacting to the ‘last straw’ incident in a chain of misconduct by your employer.

You should be aware that you will struggle to establish a case on the basis of 1 or 2 minor breaches. A good rule of thumb in judging how much time to allow, and how many breaches to note, is to consider what a third party observer may deem appropriate to establish a pattern of behaviour.

What are ‘express’ and ‘implied’ terms?

Express term:

As the name suggests an ‘express’ term is one that has been specifically stated and agreed within your contract of employment. They relate to your job description, salary, holiday entitlement, place of work and other statutory terms that are part of employment law.

Often referred to as your ‘written statement of particulars’ ACAS offers a helpful insight into the terms to be included within your employment contract.

Implied term:

In your employment contract there are a few implied terms which need not be in writing, but are nevertheless included because of custom, practise or established through common law.

In constructive dismissal claims, the most important implied term is that of ‘duty of trust and confidence’. There is assumed to be a duty between your employer and you, as their employee, to act in such a way that it would not destroy the relationship between each other.

The most common example of this term being breached is when you feel you are experiencing bullying at work.

How to prove constructive dismissal?

To increase your chances of success at tribunal, you will need to prove:

  1. That your employer has committed a repudiatory breach of contract.
  2. That you have resigned in response to this conduct.
  3. That you have not waived (or affirmed) your employer’s breach of contract.

The established legal test in constructive dismissal claims was set out by Lord Denning in the case of:

Western Excavating (ECC) Ltd v Sharp [1978] ICR 221

The third point here is very important to keep in mind.

One of the most common mistakes you can make in pursuing a constructive dismissal claim, is waiting too long to resign.

The Employment Tribunal could assert for example, that the fact you carried on working for a number of months after the breach, or series of breaches, shows that you ‘affirmed’ or accepted your employer’s misconduct/behaviour.

In other words, it could reasonably be argued that as you appear to have been prepared to live with the breach, your employer’s behaviour could not have effected you so badly.

Because resignation is such a big step, many people will try and wait until they have an another job offer before resigning, and the time this takes could significantly threaten the chances of making a successful claim.

It is not uncommon for an unscrupulous employer to engineer scenarios that are designed to extend the timeframe, in the knowledge this will weaken any constructive dismissal claim you may be considering. This is commonly known as ‘managing out’ an employee.

An example of this might be where your employer begins a disciplinary procedure against you over a relatively minor matter.

Are there any other timing considerations to advancing a claim?

As with all matters relating to advancing a claim at Employment Tribunal the usual strict time limits apply. You will have 3 months less 1 day from the date of your resignation to start the process.

What is a repudiatory breach?

Put simply, a repudiatory breach in the context of a constructive dismissal claim is a very serious breach of contract which entitles you to resign.

It is often described as a breach “going to the root of the contract”.

You can have grounds to claim as a result of a repudiatory breach of either a specific ‘express’ or ‘implied’ term.

What constitutes such a breach will require analysis of your case by the Employment Tribunal, which is often a complex process.

This is especially true where you have resigned in response to a ‘last straw’ event in a chain of misconduct by your employer, as the tribunal will have to analyse all of the incidents to that point.

If you rely on a number of acts by your employer, the tribunal will expect you to provide specific details (including dates) of each on your claim form, in order for them to decide:

  1. Whether the acts happened (finding of facts), and
  2. If they did, whether they individually and/or cumulatively, constitute repudiatory breaches of your employment contract

Can you give me some examples of repudiatory breaches of contract?

  • A unilateral salary reduction or non-payment of your wages (breach of express term)
  • Imposing or removing of your duties (breach of express term, depending on the terms of your contract)
  • Exposing you to discrimination or harassment, contrary to the Equality Act 2010 (breach of implied term of trust and confidence)
  • Failure to deal with any grievance you have raised (possibly a breach of express term or implied term)
  • Failing to conduct a disciplinary process properly or fairly (possibly a breach of express term or implied term)
  • Overloading you with excessive work (breach of implied term of trust and confidence)
  • Forcing you to work in a substandard or unsafe environment (breach of implied term of trust and confidence)

When should I resign?

If you want to pursue a claim for constructive dismissal you should resign reasonably promptly.

This will help demonstrate that you resigned in response to the breach of contract. In legal terms, this is known as ‘accepting the breach of contract’ (not to be confused with affirming the breach!).

You may be hesitant as to whether to resign or not. But, it is important to understand that any such hesitancy can harm the prospects of your claim.

If you feel your employer’s behaviour has overstepped the mark and as a result your relationship with them cannot be reconciled, you must make the decision to resign promptly and unequivocally.

Tom’s Tip

The quicker you make the decision to sever ties with your employer, the stronger your constructive dismissal case will be.

Clearly, this will be a very difficult decision. You will have to weigh up the financial impact of losing your job against the risk of losing your right to claim.

‘the employee must make up his mind soon after the conduct of which he complains. If he continues for any length of time without leaving, he will be regarded as having elected to affirm the contract and will lose his right to treat himself as discharge’

Lord Denning, Western Excavating (ECC) Ltd v Sharp [1978] ICR 221

What if I am on sick leave before choosing to resign?

If you are on sick leave, this may justify a delayed resignation in a constructive dismissal claim. But, the longer you remain employed (sick or not) the more likely it is that the Employment Tribunal will conclude that you have affirmed the breach on which you are advancing your claim.

Clearly, whether you have waited too long to resign or affirmed the breach by your employer will depend on the facts of your case.

At the very least, you must confirm to your employer (preferably in writing) your objection to their behaviour.

Can you resign in response to a possible future breach of contract?

You can resign where you feel there is a reasonable chance of future breaches of contract by your employer. These are referred to as ‘anticipatory breaches’.

For example, if your employer threatens to demote you or impose a pay cut in the future, this could be seen by the Employment Tribunal as justification for your resignation.

Should I raise a grievance before resigning?

Whether you should raise a grievance before resigning is a difficult question to answer.

On the one hand:

By definition repudiatory breaches are not meant to be ‘curable’ or repairable. As such, a grievance could not fix the problem anyway.

Keep in mind that even if your grievance were upheld by your employer, they would have already breached your contract by their actions.

Furthermore raising a grievance would delay resignation, and as a result lead to the conclusion that you have affirmed your contract.

On the other hand:

The ACAS code and the Overriding Objective encourages parties to attempt to resolve issues without resorting to legislation.

Whilst, many constructive dismissal cases have been successful after the grievance process has been exhausted, many cases have also been unsuccessful on the basis of the claimant’s failure to resign immediately in response to a repudiatory breach.

The answer to this question is again ‘it depends on the facts of your case’.

As a compromise, to strengthen your position, it may be sensible to raise a post-dismissal grievance.

Do I have to resign without notice?

The simple answer to whether you should resign without notice if pursuing a constructive dismissal claim, is no.

You can still bring a claim if you have given notice. In the majority of cases however, where an employee has been treated very badly by their employer, they either resign without notice or on shorter notice than they are required to give.

How should you resign when bringing a claim for constructive dismissal?

You should set out the reasons why you are leaving within your resignation letter.

Remember, these reasons must be cited otherwise the Employment Tribunal may deem that you left for some other reason. To bring a successful constructive dismissal claim, you must have resigned because of your employer’s repudiatory breach.

Tom’s Tip

When writing your resignation letter:

  • Don’t over elaborate on the detail.
  • Don’t be tempted to make statements like “I have enjoyed working here” or “I’m going to really miss you all”

What to do if you think you have a claim for constructive dismissal

Though constructive dismissal claims are notoriously challenging to run successfully, Tribunal Claim’s employment solicitors have helped many individuals like you obtain successful outcomes at Employment Tribunals across the UK.

Our experienced team are available to help you today.

For a quick, preliminary assessment of your potential claim, you can call our professional and approachable team on 020 3923 4777.

Alternatively, you can submit your details 24/7 online via our quick & simple enquiry form.