What is constructive dismissal?

The idea comes from section 95 of the Employment Rights Act 1996. It covers situations where you end your contract, with or without notice, because of the way your employer has behaved. Constructive dismissal is not a claim on its own. It is the way you show you were dismissed, so you can then bring a claim for unfair dismissal (or, in some cases, discrimination or wrongful dismissal).

Courts have used the same basic test since Western Excavating v Sharp (1978). You usually need to show all four of these:

1. 1

   A serious breach of contract

   Not just unfair or unpleasant treatment, but a breach that goes to the root of the employment relationship. Often this is the implied duty of trust and confidence.

2. 2

   You resigned because of it

   The breach must be a real reason you left, even if it was not the only one.

3. 3

   You did not wait too long

   Staying on for a long time without objecting can be treated as accepting the change. Raising a grievance or working under protest helps.

4. 4

   You were not fairly dismissed

   For an unfair dismissal claim, the tribunal also asks whether your employer had a fair reason. In constructive dismissal cases this is rarely the case.

Every employment contract contains an implied term that neither side will, without good reason, act in a way likely to destroy or seriously damage mutual trust and confidence. Bullying, humiliation and being ignored when you complain are the most common ways that term is broken.

The last straw. You do not always need one dramatic event. A series of smaller acts can together break trust and confidence, with a final incident that tips it over the edge. The final act does not have to be serious on its own, but it must add something to what came before. An entirely innocent act cannot be the last straw.

Constructive dismissal claims are won or lost on evidence. It is you who has to show the breach, so start recording things as early as you can.

• A dated diary of each incident: what happened, who said what, who saw it
• Emails, messages and meeting notes, saved somewhere your employer cannot delete them
• Your written grievance and your employer's response (or lack of one)
• Names of witnesses and anything they have told you in writing
• Fit notes, GP or occupational health records if your health has suffered
• Your contract, handbook and any policies your employer did not follow

HeartBrain Tracker is built for exactly this: it helps you log incidents as they happen, attach evidence and see how strong your record is becoming.

1. Raise a written grievance and give your employer a fair chance to put things right.
2. Get advice before resigning. Once you leave, you cannot undo it.
3. Resign promptly once you decide, and say in writing that you are leaving because of your employer's conduct.
4. Contact Acas for early conciliation. This is compulsory before a tribunal claim and it pauses the time limit.
5. Start your claim within 3 months less one day of your employment ending, as extended by early conciliation.

You generally need two years' continuous service to claim constructive unfair dismissal. There are important exceptions, including where the treatment is linked to a protected characteristic under the Equality Act 2010, to whistleblowing or to raising health and safety concerns.

If you win a constructive unfair dismissal claim, compensation usually has two parts:

1. Basic award

   Worked out from your age, length of service and weekly pay (which is capped), in the same way as statutory redundancy pay.

2. Compensatory award

   Covers your actual financial loss, such as lost earnings while you find work. It is capped at the lower of a year's gross pay or a statutory limit that rises each April.

There is no reliable average payout, because each award depends on your earnings, how quickly you find new work and the facts of your case. Awards can be cut if you did not follow the Acas Code, and raised by up to 25% if your employer unreasonably failed to. Discrimination claims are not capped and can include compensation for injury to feelings. Many cases settle before a hearing, often through Acas.