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). 


There are many significant hurdles in the way of a successful 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 the seriousness of the employer’s behaviour;


• The wording of the written contract terms must be checked carefully because the contract may already allow the employer to take the action the employee regards as a fundamental breach of contract. For example, if the employment contract (or a handbook incorporated into the contract) expressly allows an employer to lay off employees indefinitely without pay, then non-payment of wages for an indefinite period, on its own, cannot be a contract breach (see Chapter 4: Guarantee Pay); 


• the employee must be able to show that they resigned in response to the employer’s behaviour. But a tribunal may conclude that the employee 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 breach from taking place;


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


• 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 this kind of claim should keep a careful record of the incidents they regard as amounting to 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.