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Wednesday, 3 October 2023

Constructive dismissal

Constructive dismissal is when an employee is forced to quit their job against their will because of their employer's conduct. Find out what you can do if you feel that you have to leave your job.

What is constructive dismissal?

Constructive dismissal is a form of dismissal. If you resign from your job because of your employer’s behaviour, it may be considered to be constructive dismissal. You would need to show that:

  1. Your employer has committed a serious breach of contract
  2. You felt forced to leave because of that breach
  3. You have not done anything to suggest that you have accepted their breach or a change in employment conditions

Possible examples of constructive dismissal

The reason for leaving your job must be serious - there must be a fundamental breach of your contract. Examples include:

  • a serious breach of your contract (eg not paying you or suddenly demoting you for no reason)
  • forcing you to accept unreasonable changes to your conditions of employment without your agreement (eg suddenly telling you to work in another town, or making you work night shifts when your contract is only for day work)
  • bullying, harassment or violence against you by work colleagues
  • making you work in dangerous conditions

Your employer's breach of contract may be one serious incident or the last in a series of less important incidents that are serious when taken together.

What to do if your employer's behaviour makes you want to quit

Speak to your manager

Leaving your job should be the last resort. First, speak to your manager and see if you can resolve the problem that way. If the problem is with your manager, you could talk to:

  • their manager
  • your company's HR (human resources) department
  • an employee representative (eg a trade union official), if you have one
  • Acas (the Advisory, Conciliation and Arbitration Service) or another employment advice service

Call the Acas helpline

for free, impartial and confidential advice about all employment issues

Grievance procedures and mediation

If speaking to your manager or someone else doesn’t work, try to sort out the problem with your employer through your company's standard grievance procedure. In most cases you will be required to have raised the issue through a grievance procedure before taking legal action.

If this doesn't work, and your employer agrees to it, you could try mediation through Acas, where a specialist will try to help you and your employer sort out the problem.

Employment Tribunal claims

If talking to your employer or mediation doesn't work and you feel you have to quit, you should first get some advice. You may have a case for unfair or wrongful dismissal following a constructive dismissal. It is often very hard to prove that your employer's behaviour was so bad as to make you leave.

If you do have a case for constructive dismissal, and you think you can show it was unfair or wrongful, ideally you should then leave your job immediately. Otherwise the employer may argue that, by staying, you have accepted the conduct or treatment.

Also, avoid 'jumping the gun' or resigning before the actual breach of contract occurs. Your employer could then claim there has been no dismissal.

Claiming benefits if you are forced to quit your job

If you leave your job, your Jobcentre Plus can delay your Jobseeker's Allowance for up to 26 weeks. Make sure they understand what's happened and why you had to leave.

If you are taking your case to an Employment Tribunal, it's a good idea to give the Jobcentre Plus copies of your completed Tribunal application forms.

If you can't claim Jobseeker's Allowance, you may be able to claim a hardship payment (a reduced amount of Jobseeker's Allowance).

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