Constructive dismissal claims can be pursued when an employee resigns due to their employer’s conduct. The behaviour or changes in employment terms must be so severe that they effectively force the employee to leave, even though the employer did not directly fire them. If you have been affected by constructive dismissal, you may be able to seek compensation in the form of a constructive dismissal claim.
To ensure that your case is handled expertly, our Employment Solicitors are here to help support you and build your claim towards success. If you are looking to pursue a constructive dismissal claim, book an initial consultation with one of our experienced constructive dismissal solicitors by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.
In this article, we will provide a comprehensive guide to understanding, preparing and filing constructive dismissal claims.
This article is written by Philip Luff, an experienced Solicitor regulated by the Solicitors Regulation Authority. Philip qualified as a solicitor in 2010 after completing his Legal Practice Course at the University of Law, London. He specialises in Employment Law, with extensive experience in Constructive Dismissal Claims.
What is Constructive Dismissal?
Constructive dismissal, also known as constructive unfair dismissal, occurs when an employee is compelled to resign due to their employer’s conduct. This situation arises not because the employer explicitly dismisses the individual, but because their actions or failure to act creates an unbearable work environment.
There are many scenarios where an employer could create a workplace environment that leads to constructive dismissal. This could include any violation of contractual terms or conditions so serious that it would be unreasonable to expect the employee to continue working.
The onus is on the employee to prove that their resignation was a direct result of the employer’s actions, which fundamentally breached the employment contract. Due to this, it is highly recommended that you bring in professional legal support to build your claim, such as one of our experienced employment lawyers at Elite Law Solicitors. This will ensure that your claim clearly shows that constructive dismissal took place.
Examples of Constructive Dismissal
There are several scenarios where an employer could breach your employment contract or create an environment that is untenable for you to work in, leading to constructive dismissal. Some of the most common examples of this include:
Sudden reduction in pay or status
A significant and unilateral reduction in salary, or a demotion without a justifiable reason, often serves as a clear basis for a constructive dismissal claim. These actions fundamentally alter the employment agreement and can make the work situation untenable for you as the employee.
Harassment and bullying
Persistent harassment or bullying by co-workers or supervisors can create a hostile and intolerable work environment. If your employer fails to address such situations effectively after being informed, it could lead to a claim of constructive dismissal.
Changes in working conditions
Imposing drastic changes such as relocation, shift changes, or substantially different job duties without your consent or without contractual allowance can constitute constructive dismissal. This is particularly relevant if the change makes it impossible or unreasonably difficult for you to continue in your role.
Unsafe work environment
Maintaining a work environment that becomes unsafe or harmful and shows a disregard for your well-being can also be grounds for constructive dismissal. This could include failure to follow safety protocols or not addressing new safety hazards.
How to prove a Constructive Dismissal Claim
To successfully claim constructive dismissal, you will need to demonstrate several key elements in your case. They include:
Existence of a fundamental breach
You must show that your employer committed a fundamental breach of the employment contract. This involves proving that your employer’s actions or inactions were so severe that they altered the essential terms of the employment relationship.
Reasonableness of resignation
It must be established that your decision to resign was reasonable under the circumstances. You need to demonstrate that any reasonable person in the same situation would have felt compelled to resign due to your employer’s behaviour.
Causation
A direct link must be shown between your employer’s breach of contract and your resignation. The resignation must be a result of your employer’s actions and not due to external or unrelated factors.
Timeliness of Resignation
The timing of the resignation is also important. You should ideally resign in a timely manner after the incident(s) that constituted the breach. Delayed resignations could be seen as an acceptance of the new terms or conditions, or of the misconduct.
Steps for making a claim for Constructive Dismissal
Making a claim for constructive dismissal may feel intimidating at first glance, but with the assistance of appropriately experienced employment solicitors, it is quite simple. We use a streamlined framework that ensures your case is strongly built, fit for purpose and will improve your chances of success. Below is a general overview of the steps we take when making your claim:
Step 1: Gathering documents
Before making any legal moves, we will help you gather and organise evidence that supports your claim. This includes any relevant communications, such as emails or letters, notes from meetings, any relevant changes to employment contracts, witness statements from colleagues, and any other documentation that can demonstrate the employer’s breaches and their impact on the employee.
Step 2: Formal resignation
You will need to resign from your position, and this resignation should be clearly linked to your employer’s actions that are being contested. The resignation letter should be carefully crafted to outline the reasons for resigning and should explicitly mention that it is due to actions considered to constitute constructive dismissal.
Step 3: ACAS early conciliation
Before the claim is officially lodged with the tribunal, the Advisory, Conciliation and Arbitration Service (ACAS) offers an early conciliation service. This is a mandatory process aimed at resolving disputes before they reach the tribunal. Both parties have the opportunity to reach a settlement through ACAS, which can avoid the need for a tribunal hearing.
Step 4: Submitting a constructive dismissal claim
From here, we will file a claim with an employment tribunal. This involves completing an ET1 claim form that details your grievances and how you believe your employer has breached the terms of the employment contract.
Step 5: Tribunal process
If conciliation fails or is deemed unsuitable, the case will proceed to a Employment Tribunal hearing. Here, both parties will present their evidence, and witnesses can be called to testify. The tribunal will then make a judgment based on the evidence presented.
Step 6: Judgement and remedies
If the tribunal finds in favour of your claim, it will also consider appropriate remedies, which could include compensation for lost earnings and, in some cases, additional compensation for emotional distress.
Compensation for Constructive Dismissal Claims
Calculating compensation in constructive dismissal claims can be complex, as it depends on a variety of factors specific to your claim. In the case of a successful claim, your constructive dismissal award will be categorised into two main areas:
Basic constructive dismissal award
The basic constructive dismissal award is calculated similarly to a redundancy payment and depends on your age, weekly pay, and length of service. The formula is as follows:
- Half a week’s pay for each full year of service where you were under the age of 22.
- One week’s pay for each full year of service where you were between the ages of 22 and 41.
- One and a half week’s pay for each full year of service where you were 41 or older.
The weekly pay is capped at a statutory maximum, and the length of service is capped at 20 years.
Compensatory constructive dismissal award
The compensatory constructive dismissal award is intended to compensate you for actual losses resulting from the constructive dismissal. This might include loss of earnings, future loss of earnings, and loss of statutory rights (the rights you lose when leaving a job, such as protection against unfair dismissal).
Do I need to instruct an Employment Lawyer for a Constructive Dismissal Claim?
Deciding whether to instruct specialist constructive dismissal solicitors is a critical step. Although not a legal requirement, having legal counsel in your corner during these claims is incredibly useful. It offers a wealth of benefits that strengthen your case, including:
Expert legal guidance
Employment law can be complicated and nuanced, particularly around areas such as constructive dismissal. An employment solicitor brings expert knowledge of the law, which is key for interpreting your employment rights and the specifics of your case. They can help you understand whether your situation legally qualifies as constructive dismissal and advise on the potential outcomes of pursuing a claim.
Case preparation
One of the key benefits of having a solicitor is their ability to prepare a strong case on your behalf. This includes gathering and organising evidence, preparing legal documents, and crafting a compelling narrative for your claim. Solicitors are adept at identifying what information is most likely to influence the outcome and how to present it effectively.
Representation at employment tribunal
If your case goes to a tribunal, having legal representation can significantly impact the result. Employment solicitors are experienced in arguing cases before tribunals, skilled in examination and cross-examination of witnesses, and adept at navigating the tribunal procedures and protocols.
Negotiation of settlements
Many constructive dismissal claims are settled out of court. Employment solicitors have negotiation skills that are useful in securing the best possible settlement terms. They can ensure that any settlement agreement comprehensively covers all aspects of compensation you are entitled to and that your rights are fully protected.
To find out more about pursuing constructive dismissal claims, please book an initial appointment with one of our experienced employment lawyers by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or by completing our Free Online Enquiry Form.
Constructive Dismissal FAQs
Below, we address some of the most common questions employees have regarding constructive dismissal claims, drawing on guidance from authoritative sources such as ACAS and our practical experience of advising clients on UK employment disputes.
Is there a minimum period of employment for Constructive Dismissal Claims?
There are several criteria that need to be met for constructive dismissal claims. First and foremost, you will need to have been an employee at the company you are claiming against and have worked for this employer for at least 2 years.
Being employed by the company is important, but it does not mean you have to have worked there full-time. You could have a part-time contract or even be classed as self-employed. However, if you worked with a third party such as an agency or did not have guaranteed hours, then you might not fit the criteria to claim. It is therefore very important to understand what your employment status was before starting your claim.
Who usually makes the first move in Constructive Dismissal Claims?
Constructive dismissal claims are typically initiated by the employee making the claim, so if you want to make a claim you need to start things off. At Elite Law Solicitors, our experienced constructive dismissal solicitors can work with you to start your claim against your employer in a simple, stress-free way.
The first step in the process is formally resigning from your role with the employer. The resignation should be a direct response to the employer’s actions or failures that fundamentally change the employment contract terms.
Can I negotiate a Constructive Dismissal case myself?
Negotiating a resolution in constructive dismissal claims is not only possible but can also be a beneficial alternative to pursuing a formal tribunal claim. Legal representation is highly advisable in any negotiation related to a constructive dismissal case as it gives you a strong negotiating position. With the help of experienced employment solicitors, your negotiations will be strengthened by:
Expertise in Constructive Dismissal Claims
Our specialist constructive dismissal solicitors have in-depth knowledge of employment law, including the latest legislative changes and tribunal precedents that could affect the outcome of your case. This expertise is key in evaluating the strength of constructive dismissal claims and in developing an effective negotiation strategy.
Objective assessment
Our experienced employment solicitors can provide an objective assessment of your case, helping to manage expectations based on the merits of your claim and the likely outcomes. We can advise on whether settlement is a more favourable option compared to a tribunal hearing, considering the potential costs, time investment, and emotional stress involved in litigation.
Drafting and reviewing Settlement Agreements
Our employment lawyers are also adept at drafting and reviewing settlement agreements to ensure that the terms are legally binding and that they adequately address all pertinent aspects of the dispute. We will ensure that the settlement covers adequate compensation for lost wages, emotional distress, and possibly legal costs, safeguarding your interests.
Will I have to work my notice period if I resign?
When resigning as part of a constructive dismissal claim, one of the key questions often revolves around whether you are required to work your contractual notice period. Resigning immediately and not working the notice period can be appropriate where continuing to work could cause significant distress or further compromise your situation. This approach is often justified in cases involving harassment, severe bullying, or health and safety risks.
However, in other cases, it may be beneficial for you to work your notice period. The right approach will depend on your circumstances and the basis of your claim, so make sure you speak with a legal professional before making a final decision on this.
How long do Constructive Dismissal Claims take?
The duration of constructive dismissal claims can vary significantly depending on several factors, including the complexity of the case, the willingness of the parties to negotiate, and the backlog of cases at the employment tribunal. Generally speaking, the entire process from early conciliation to a final decision can typically take anywhere from 6 months to over a year, sometimes longer if there are appeals or complex legal challenges.
Working with specialist constructive dismissal solicitors is the best way to ensure your case is handled efficiently and effectively, helping you seek compensation in a stress-free way.
How are Constructive Dismissal Claims funded?
Understanding your funding options for a constructive dismissal claim is important as it can influence how you proceed with your case. Below is a detailed look at the main ways these claims can be financed:
Self-funding for Constructive Dismissal Claims
Self-funding is an option where the claimant covers all legal costs out of pocket. This method provides complete control over the proceedings but requires a financial commitment that can be substantial, depending on the complexity and duration of the case.
No Win No Fee agreements
Many employment solicitors offer no-win-no-fee agreements, also known as Conditional Fee Agreements (CFAs). Under a CFA, the solicitor will not charge a fee if the case is unsuccessful. If the claim is successful, the solicitor will typically take a percentage of the compensation awarded as their fee. This percentage is agreed upon in advance and is capped by law to ensure fairness.
How Elite Law Solicitors can help
When facing the complexities of a constructive dismissal claim, partnering with appropriately experienced employment lawyers can make all the difference. With our guidance, your case will be handled efficiently and in adherence with the latest regulations around these claims.
Each case of constructive dismissal is unique, with its own set of circumstances and challenges. We provide personalised legal advice tailored to your specific situation. By working closely with you, we will develop a strategy that maximises your chances of a favourable outcome, whether through negotiation, settlement, or tribunal proceedings.
At Elite Law Solicitors, you gain a partner who understands the challenges of constructive dismissal and is committed to protecting your employment rights. Our comprehensive legal services offer peace of mind and the best possible support in pursuing your claim. Whether you are just starting to explore your options or are ready to initiate a claim, our expert employment solicitors can guide and support you every step of the way.
Book your FREE initial consultation
If you have any queries in relation to making constructive dismissal claims, or require specialist legal advice or assistance on any other area of employment law, please get in touch with our one of our specialist employment solicitors today by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk, or by completing our Free Online Enquiry Form.
The content of this article is for general information only. The information in this article is not legal or professional advice. If you require legal or professional advice you should obtain independent expert advice from qualified employment solicitors such as those within our firm.
