How to prove a constructive dismissal claim

sarah ryan
Sarah RyanAccount Manager @ Lawhive & Non-Practising Solicitor
Updated on 8th February 2024

According to government records, successful claims for unfair dismissal increased by 51% for 2021/22, a statistic that may be heartening for someone who is looking to prove a constructive dismissal claim.

Having said that, it's important to understand why this may be the case. There are several factors that may influence this rise, including:

  • Delays due to Covid

  • Claims relating to the furlough scheme

  • The cost of living crisis

  • Employees feeling increasingly dissatisfied with employers (i.e. remote working policies post-Covid).

Historically, not many constructive and unfair dismissal claims win (only around 5%). In the main, cases are dismissed because an employee is unable to adequately prove that an employer's conduct was so bad it caused them to resign.

Which begs the question, how do you actually prove a constructive dismissal claim?

What you need to prove a constructive dismissal case

Constructive dismissal is classified when an employee resigns as a direct result of their employer breaching their contract.

Proving constructive dismissal can be very difficult as, in line with the Employment Rights Act 1996, the employee must prove:

1. A serious breach of contract

In most cases, an employer will have broken a written term in your contract of employment. This might be related to payment of wages, working hours and shift patterns, or health and safety in your working environment.

In rarer cases, it may be that an employer has broken a term that was implied by them but not necessarily detailed in the contract. For example, the employer acts in a dishonest way which impacts the employee's employment prospects. This can be seen in the case of Malik v BCCI SA where two employees claimed they had lost employment prospects because the Bank had breached their implied contractual obligation of mutual trust and confidence.

2. Directly connected to the employee's resignation.

This part is often the sticking point for employees looking to prove a constructive dismissal claim because they don't always resign straight after the breach takes place.

The trouble with this is that not resigning close to the incident can be interpreted as the employee accepting the behaviour, and their resignation later being unrelated to the breach.

If you have good reason to believe you might have a constructive dismissal claim, you must seek out expert help and advice quickly to build your case, either from an experienced employment solicitor, trade union rep, or ACAS.

Recently, 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.

With that, there are several actions you must take to have a good chance of winning your claim, which we will explore below.

How To Prove Constructive Dismissal

Speak to management

You will need to show proof that you tried to resolve things before you were forced to resign.

As a starting point, you can speak to your direct manager. If you need to go to upper management, you should. You can also talk to a trade union representative or someone in the HR department.

For each of these interactions take records and keep all of your correspondence. Make detailed notes on any conversations, and always follow up in writing, either by email or letter.

Follow your company's official complaints or grievance process

Find out what the formal process is for raising a grievance and follow it as closely as you can.

Log your complaint officially and in writing, keeping all of your notes on any discussions or meetings.

For further help with this check out our article on how to win a grievance hearing as an employee.

Record all incidents

Every time there is an incident that you believe to be part of your claim for constructive dismissal, make a record of it. That might be a log or a journal with dates, times, the people involved, any witnesses, and all the important details.

Keep supporting documents

Carefully keep any relevant documents that back up your claim such as payslips if your claim is pay-related (for example, you have been consistently underpaid), time sheets for a case to do with work hours, company memos, emails, or any other documents that could be relevant to the claim.

Identify witnesses and gather witness statements

Make notes of any other colleagues who happen to be around when incidents occur. Once you have left the company you can then ask them for statements. It will help if you can provide them with dates, times, and locations of where the incidents occurred.

Resign as soon as possible

You can only claim constructive dismissal if the breach of contract forces you to resign. If your employer terminates your employment, you may well have a case for unfair dismissal, but it cannot be constructive dismissal.

Timeframes between breach of contract and resignation are open to some interpretation, which can make proving your claim even harder in some cases, but generally the longer you leave it, the greater the chances a tribunal might decide you waited too long and in doing so accepted what happened

Identify the breach of employment contract

There are many possible reasons for this including workplace bullying, discrimination related to protected characteristics, withholding of pay or underpayment of wages, and many other causes.

If you are unsure what might count as constructive dismissal, check out our article on the signs to look out for that means you might have a constructive dismissal claim.

How can Lawhive help me prove constructive dismissal?

Being forced to quit your job under these kinds of circumstances is never pleasant. However, it's important to know that if you do not feel supported by your employer, you do have options and there is support available.

While time is of the essence in proving constructive dismissal claims, you should always take the time to seek expert legal advice on your specific situation. Any good employment solicitor will take the time to listen to what has happened and guide you through the process of claiming constructive dismissal.

If you find yourself in this position, our solicitors are on hand to help. To get started, simply tell us about your case to get a fixed-fee quote in as little as 5 minutes and be connected to a specialist solicitor as soon as possible.

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