If your employer's conduct has left you feeling you have no choice but to resign, speak to us before you do. How and when you resign can significantly affect your legal position.
Constructive dismissal occurs when your employer commits a fundamental breach of your contract of employment, and you resign — with or without notice — in response to that breach. Although you are the one resigning, the law treats this as a dismissal, meaning you can potentially bring the same claims available to someone who was dismissed outright.
The breach at the heart of a constructive dismissal claim does not have to be a single dramatic event. It can be one serious incident, or a course of conduct where the cumulative effect breaches your employer's duty to maintain trust and confidence with you — sometimes with a final, comparatively minor incident acting as the "last straw" after a pattern of prior conduct.
Two things can seriously undermine an otherwise strong constructive dismissal case: waiting too long to resign after the breach, and continuing to work normally in the meantime. Both can be treated as "affirming" the contract — effectively accepting the breach and giving up your right to treat it as a dismissal. This does not mean you must resign on the spot, but it does mean you should take advice quickly, and be careful about how your resignation is worded, since it can later be used as evidence of why you left.
Establishing that you were constructively dismissed is only the first step. You will usually then need to show that the dismissal was unfair under the ordinary rules that apply to any dismissal — which generally requires at least two years' continuous employment, unless the underlying reason falls into an automatically unfair category such as whistleblowing or asserting a statutory right. We can advise you on both elements together: whether a breach has occurred, and whether you are also likely to succeed on unfair dismissal.
Resignation is not always the right first step. In some cases, raising a formal grievance, or exploring a negotiated exit through a settlement agreement, achieves a better outcome with less risk than resigning and having to prove your case afterwards. See our comparison of settlement agreement vs resignation for more on this. We will help you weigh up the options before you act, not just review your position after the event.
The same time limit applies as for other dismissal claims: normally three months less one day from your last day of employment, extendable by contacting ACAS for early conciliation. Because the strength of a constructive dismissal claim depends so heavily on what you do next, it is best to seek advice before resigning wherever possible.
Call us on 020 3058 3365 or complete the form for a free, confidential assessment. If you are still employed and considering your options, we can advise you on the safest way forward before you take any irreversible step.
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