When can I claim constructive dismissal?
Content / trigger warning
If you’ve resigned because of a toxic culture or bad behaviour at work, or if you’re thinking about resigning, you might be wondering whether you could claim for constructive dismissal.
What is constructive dismissal?
If your working conditions have become so bad that you feel you have to leave your job, you could be able to claim constructive dismissal.
- You’re being made to work more than your contracted hours, although you’ve complained.
- Things you used to be responsible for have been taken away from you, and your manager isn’t addressing your worries about it.
- Management have ignored your complaint about bullying.
You need to have been employed at your workplace for at least two years if you want to make a constructive dismissal claim - unless it’s for a discriminatory reason or amounts to automatic unfair dismissal [Citizens Advice].
You can’t bring a constructive dismissal case until after you have resigned. You then have three months less one day from the date you left (usually the last day you were paid for) to raise an Employment Tribunal claim.
You would normally be expected to raise a grievance before resigning and claiming constructive dismissal (otherwise any compensation you receive may be reduced by up to 25%). If you have already left your job, you can still raise a formal grievance, but your employer may not engage with this. Try to raise a grievance before you resign if possible, even if this is as part of your resignation letter.
Writing your resignation letter
It’s best to state your reasons for leaving in your resignation letter, to show a link between the incident or behaviour and you leaving. If you don’t feel comfortable doing that, you need to be able to show the Tribunal other clear evidence for your reasons.
It’s important that you make it clear you are unhappy with the incident or behaviour as soon as possible. If you don’t say anything, the Tribunal might conclude that you have accepted the situation. For example, if you have been working extra hours for a long time without having complained, this could be seen as you having agreed to the change.
Real-life examples of constructive dismissal
Undermining a CEO
In a constructive dismissal case brought to the Employment Tribunal in 2019, the CEO of a charity showed evidence of 3 separate times where the Board of Trustees had undermined them by making direct decisions about employees, which should have been the CEO’s job.
The third incident was deemed to be particularly serious - the board reinstated an employee who the CEO had suspended, and then ignored them when they asked for a meeting to discuss that.
The CEO won over £26k in compensation.
New owners, new hours
In 2019, a convenience store worker had her hours cut when the shop was taken over by someone new.
When she complained, the new owners made it clear that they were not going to honour her previous working hours.
She resigned and won nearly £5,000 for constructive dismissal.
‘The final straw’
In a constructive dismissal case brought to the Tribunal in 2016, a teacher had twice been accused of misconduct. He was very unhappy with the way that the disciplinary issues were dealt with, and raised a grievance with 49 different complaints. The grievance and grievance appeal were unsuccessful. Before the disciplinary proceedings against him could be completed, he resigned.
In his resignation letter, he complained about his treatment up to that point, and said that he had finally resigned after his employer had told him not to contact his union rep, because that rep had also been accused of misconduct.
The Employment Tribunal dismissed his claim at first because they felt that it was reasonable to have asked him not to contact the rep.
However, when he appealed the decision, the Employment Appeal Tribunal felt that it counted as a ‘final straw’. This means something that is not serious enough on its own to warrant constructive dismissal, but when considered together with everything else, it’s enough to push someone into needing to resign.
Employment Tribunal decision (dismissed) - read the full case on the Government Publishing Service
Employment Appeal Tribunal decision (succeeded) - read the full case on the Government Publishing Service
Managed out of the company
An accounts assistant raised a grievance against his manager for bullying. The grievance was successful, and his manager was changed. However, he was then treated with “coldness” from senior management, including making him go through a formal performance management process.
He was successful in his claim for constructive dismissal, as the Tribunal found that his employer’s motives for the processes they made him go through were not genuine.
They agreed with his view that the employer had acted in such a way because they “wanted him out.”
Thinking of claiming?
If you think you might have a case for constructive dismissal, Valla can help you understand your case and store your evidence. Sign up for your free account for a secure personal space to get your case together.