What is constructive dismissal?
Constructive dismissal (sometimes called constructive termination) is when you're forced to resign because of something your employer has done. Often this is the result of a hostile work environment.
What does the law say about constructive dismissal?
As an employee, you have the legal right to a safe work environment. Constructive dismissal claims are based on your employer breaching your contract of employment forcing you to resign. The legal term is 'constructive unfair dismissal'.
Who can make a constructive dismissal claim?
To claim constructive dismissal, you usually need to be classified as an employee and have been employed for at least 2 years (including your statutory notice period). It is worth noting that you might still be classed as an employee even if your contract or employer said you were self-employed.
If you've worked for your employer for less than 2 years you might still be able to claim for constructive dismissal if the reason you were dismissed is discriminatory or 'automatically unfair'.
An example of an 'automatically unfair' reason for dismissal would be if you had to resign due to being treated unfairly in a way that amounts to a breach of contract because you are pregnant of you have reported your employer for wrongdoing (whistle blowing).
An example of discrimination would be if you were treated unfairly because you are or are seen to be disabled, older or younger than the people you work with, or have a particular religion or set of beliefs.
8 signs you might have a constructive dismissal claim
1. You're regularly not paid the amount you're owed without any good reason.
If your employer decides to pay you less than you are owed according to your contract and has no good reason, this may be grounds for constructive dismissal.
As a general rule, one-off underpayments of salary or failure to pay a salary is not serious enough to warrant a constructive dismissal claim, even though it is still technically a breach of contract. However, if an employer repeatedly fails to comply with their obligation to pay a salary, an employee may have grounds to resign and claim constructive dismissal and breach of contract.
2. You are being bullied at work.
There's no legal definition of bullying, and bullying can take many forms. Some common examples of bullying at work are: co-workers spreading malicious rumours, copying private messages or memos about you to other parties who don't need access to the private information, misuses of power or position by a manager or superior, unwelcome sexual advances or inappropriate language or behaviour, constant criticism that is unjustified.
3. You are experiencing discrimination from co-workers.
Discrimination can be based on many factors such as age, race, gender, and sexuality. These are known as protected characteristics.
If you believe you have been forced to resign because of discrimination based on these characteristics, you could make a claim to an employment tribunal.
4. You've raised a grievance that your employer has refused to look into.
If you have brought a legitimate problem to the attention of your employer, yet they have refused to look into it, they may be creating a hostile work environment.
5. Your work environment is unsafe.
If your work location or environment is unsafe, and your employer knows it, you may have a claim for constructive dismissal. For example, if you are asked to work alone in a situation where lone working is not appropriate.
6. Your employer has changed your hours or your work location in an unreasonable way.
Usually, your employer needs your permission to change your hours or the location of where you work. If you refuse but your employer insists on changing your contract of employment, you may have a claim.
7. You're not getting the support you need to do your job
If you can't do your job because your employer doesn't give you the support or resources you need and that you were promised, you may have a claim.
8. Your employer has taken away benefits that your contract says you should get.
If your contract says you should receive a certain benefit, like a car, and your employer decides to take the benefit away, you may have a claim.
9. You are demoted or your salary is reduced, or you're threatened with a salary reduction.
If your employer demotes you or reduces your salary so it no longer matches what's in your contract, you may have a claim for constructive dismissal.
What to do if you think you have a claim?
If you believe you have a strong constructive dismissal claim, you have to act quickly. By law, you've got 3 months minus a day from the date your job ended to start legal action.
An important starting point is to seek legal advice from a legal professional, such as an employment solicitor, your trade union (if you have them), or Citizen's Advice as soon as possible.
It is important that you get help and advice. Citizen's Advice has openly said that if you take your claim to an employment tribunal without help and advice, you're likely to lose. It is also worth noting that if you do have a case for constructive dismissal, but you have not yet resigned, you should consider doing so as soon as possible after seeking specialist advice. If you do not leave, your employer may argue that, by staying, you accepted the conduct or treatment.