What is constructive dismissal?

Constructive dismissal – also known as constructive unfair dismissal – occurs when your employer has treated you so badly that you've no choice but to resign. This can happen for contractual reasons, such as when you've not been paid, but it can also happen because you've been subjected to discrimination, victimisation or harassment in the workplace or if the trust and confidence in the employment relationship has fundamentally broken down.

If you believe that your position at work has become untenable, it's often a good idea to talk to an experienced employment solicitor to find out if you may be able to resign and then bring a constructive dismissal claim. Alternatively, if you've already been forced out of your job, or unfairly dismissed in some other way, we're always happy to guide and advise you.

Making a claim for constructive or unfair dismissal can be incredibly complex, as your case will rest on being able to prove that your treatment was unjust or so bad you had no choice to resign your post. It is therefore essential that you speak to an expert in the field, with a wealth of experience and a proven track record of success.

Our team are leaders in the field, supporting hundreds of clients every year in securing their employment rights. Call us on 0330 041 5869 or contact us online to request a call back.

What is wrongful dismissal?

The difference between an unfair dismissal and a wrongful dismissal is that, while unfair dismissal refers to bias or unjust decisions within the dismissal process, wrongful dismissal describes a situation in which an employee has been terminated in a manner that breaches the terms of their contract.

For example, wrongful dismissal could include:

• Failing to give proper notice (or any notice, except in cases of gross misconduct) of intention to terminate your contract
• Ignoring or not acting in accordance with disciplinary procedures
• Failure to follow redundancy procedures
• Terminating a fixed-term contract before it has expired
• Making unilateral changes to terms of employment, such as reducing pay or benefits

What are the grounds for a constructive dismissal claim?

There are times when employees may find they feel unable to continue working in their current role, and that they have no choice but to resign, even if they don’t want to or cannot afford to do so.

There are many reasons why this may occur, from feeling unsafe due to harassment or bullying, or being mistreated by senior colleagues. Other issues include:

• Your employer has made unilateral decisions to alter your working environment or conditions without consent (including changes to pay, working hours, or location)
• You have been demoted without cause
• Your employer has failed to address concerns of harassment, bullying or discrimination
• You have been set excessive workloads or unrealistic targets designed to force you out of the business
• You have not received the necessary support or tools to do your work
• There have been false accusations made against you or your authority has been undermined with no proper investigation or remedy

Whatever the circumstance, if you’ve worked at the same company for at least two years, you could be entitled to bring a constructive dismissal claim against your employer.

It is important to know that making a claim is a big step and will require substantial evidence, so the decision to do so should only be taken after careful consideration and as a last resort.

If you feel that a constructive dismissal claim may be the way forward for you, you should speak to one of our friendly, specialist employment solicitors as soon as possible, ideally before you resign. We’ll discuss your situation in detail, examining the details of your case and providing tailored legal advice so you can proceed with confidence.

Speak to our constructive dismissal solicitors

What qualifies as unfair dismissal?

If you've worked for an employer continuously for at least two years, you have several legal rights that mean you cannot be dismissed without a fair reason. In the eyes of the law, fair reasons for dismissal could include:

• Capability: Where your health or abilities are not up to the demands of your role, for example if you have had persistent or long-term illness that makes it impossible to do your job
• Conduct: Where your behaviour is deemed unacceptable or inappropriate, such as poor attendance, harassment, bullying, theft, dishonesty, drug or alcohol abuse in the workplace
• Redundancy: Where roles no longer exist or there's a reduced requirement for a particular role of type of work, and you've been selected for redundancy based on fair criteria and a fair selection process
• Breach of statutory restriction: Where you are no longer able to perform the duties of your role legally, for example, if you are required to drive for work and you lose your licence
• Some other substantial reason (SOSR): This can encompass various scenarios not covered in the above and could include breakdowns in working relationships with colleagues or clients, or if your continued employment could lead to damage to the business reputation (for instance, if you’ve been arrested)

Dismissals made on the basis of SOSR can seem subjective. The core issue with any of these dismissals is that the reason must be ‘substantial’, and your employer will need to be able to prove that it is a significant impact on the business.

Reputational damage is one of the most common ‘other substantial reason’ given, which can be quite vague. If you’re unsure of whether your employer’s decision with fair, it is important to seek advice from a specialist employment lawyer as soon as possible.

To speak to our team, call us 0330 041 5869 or contact us online to arrange a call back.

Is there a minimum length of service for an unfair or constructive dismissal claim?

In most cases, you will need to have worked for your employer continuously for 2 years before you can make a claim for unfair or constructive dismissal. If you have not yet worked for your employer for 2 years, you won’t be able to take legal action against your employer, even if it feels unfair.

There are, however, some exceptions to this rule. These include:

• Dismissal for whistleblowing
• Dismissal on the grounds of discrimination (including sex, sexuality, disability, race and other protected characteristics)
• Dismissal due to breach of contract (for example, your working hours, pay, overtime policy has been changed without your agreement)

How to claim for unfair or constructive dismissal

1. Speak to our employment specialists for tailored legal advice as soon as possible to start your claim within the time limit
2. We will examine the details of your case and advise you on the best way forward, including considering a formal grievance with your employer
3. You will need to take part in Acas Early Conciliation with your employer – this is mandatory, and attempts to resolve issues before they reach tribunal
4. If your case has not been resolved, you can then lodge an employment tribunal claim. Our industry-leading employment solicitors will be on hand throughout to support you.
5. At every stage, our specialist solicitors will provide award-winning legal advice, tailored to you, ensuring your case has the best possible chance of success

Why choose Slater and Gordon’s constructive and unfair dismissal solicitors

No one should be made to feel like they are being forced out of employment or have to struggle with the impact of lost employment due to someone else’s unjust actions. If you feel like you’ve been treated unfairly by your employer, our specialist unfair dismissal solicitors are ready to provide the support and legal expertise you need.

Our employment team have an outstanding track record of success in handling unfair dismissal claims, and many of our solicitors have received recognition from esteemed legal publications such as Chambers and Partners and the Legal 500. With a wealth of experience and expertise, you can trust that you are in good hands.