Constructive dismissal — the main risks



Resigning and claiming constructive unfair dismissal is a high-risk strategy and should always be a last resort. Anyone considering this course should take careful advice first from a union rep. Acas also runs a national helpline (tel: 0300 123 1100).


Consider with the member whether to initiate Acas EC to try to resolve the dispute. Attempts to conciliate a dispute through Acas are confidential. In some inter-personal disputes, an external Acas mediator may be able to help find a solution and avoid the need to resign (see page 512).


There are many significant legal hurdles in the way of a successful constructive dismissal claim, for example: 



• the behaviour complained of must be serious enough to be a fundamental contract breach. But a tribunal may not agree with the employee’s assessment of its seriousness;


• the written contract terms must be checked carefully, because the contract may allow the employer to take the action the employee regards as a fundamental breach of contract. There can be no fundamental breach of contract if the contract terms permit the disputed act; 



• the employee must show that they resigned in response to the employer’s behaviour. But a tribunal may conclude that they would probably have resigned anyway, in which case, even if the claim succeeds, compensation will be significantly reduced;



• even if the employer’s behaviour was unacceptable, a tribunal could decide that steps taken by senior managers or HR, such as apologising and offering a solution, prevented a fundamental contract breach;



• co-workers may be unwilling to give evidence to the tribunal, especially if the claim concerns, for example, a manager’s bad behaviour; 



• claims for constructive dismissal tend to be longer, more complicated and more expensive than ordinary unfair dismissal claims. This is because they usually require detailed analysis of facts and more extended cross-examination of witnesses; 



• finally, even if a claim is successful, compensation is limited. In particular, in a claim for unfair dismissal (unlike a discrimination claim), there is no right to compensation for injury to feelings or damage to health, no matter how badly the employer has behaved. 



An employee considering a claim for constructive dismissal should keep a careful record of the incidents they regard as a fundamental breach of the contract, and of all their efforts to have concerns dealt with properly, keeping copies, if possible, of relevant emails, text messages or screen prints of social media posts that help to prove the claim. 



Any resignation must be clearly written, spelling out the connection between the decision to resign and the events that have led to the decision. The choice of language must be considered very carefully and legal advice should be taken. 



An employee who is made ill by work should visit a GP and keep copies of all referral letters, prescriptions and hospital appointments.