How to prove constructive dismissal?

No one deserves to be unhappy in their job role, especially if you are being treated unfairly.

Do you feel that your position has become untenable? Is this due to mistreatment or inaction by your employer? If so, then you may be liable for a constructive dismissal claim. 

Read on for all you need to know about your rights and how to evidence your case. 


What is constructive dismissal?

Constructive dismissal is when an employee is forced to leave their job because of the actions or inactions of their employer. 

To bring a claim for constructive dismissal, you must prove that there has been a fundamental breach of contract

There are two ways in which you can demonstrate this. These are as follows:

  1. A breach of contract: this can include a violation in the express terms of your employment contract such as pay, holiday entitlement, job role etc.
  2. A breach of an implied term in your contract: these include implicit understandings that are not necessarily stated in your contract. These are general expectations or understandings that should be adhered to. Such as provisions for health and safety in the workplace.

What are examples of actions that can lead to constructive dismissal?

There is no exhaustive list detailing what actions can lead to an employee resigning due to constructive dismissal. However, key examples can include:

  • Your employer turning a blind eye to bullying or harassment
  • Making unreasonable changes to your job role without your consent
  • An unwarranted demotion or reduction in salary
  • Refusal to pay your wages
  • Making you work in contravention of health and safety laws
  • Removal of employment benefits

Am I eligible to claim for constructive dismissal?

You can usually only claim for constructive dismissal in the following instances:

  • If you are classed as an employee. You can check here to see if you are categorised as an employee.
  • If you have had two continual years of service for the employer

How can I prove constructive dismissal?

There are four main steps to follow to prove your case for constructive dismissal successfully. However, before engaging in step one, we recommend speaking to an employment law solicitor to ensure your case is watertight and to get the support you need.

The four main steps are:

  1. Speaking to your employer to talk through your issues and try to resolve the problem
  2. Filing a grievance with your employer
  3. If the issue remains unresolved, resigning without full notice
  4. Proceeding to an employment tribunal to claim for constructive dismissal

How do I evidence my claim for constructive dismissal?

If your case progresses as far as a tribunal, you will need to evidence your case concretely. Therefore, we recommend compiling all necessary documents from the outset to facilitate your claim.

Moreover, you will need to show that your employer continually mistreated you and in contravention of your employment contract

You will also need to prove that they failed to resolve the matter adequately. 

Examples of evidence can include:

  • Grievance reports
  • Mediation records
  • Witness statements from fellow employees
  • Records of incidents. This can include keeping a diary or timeline of events
  • Paperwork to support your claim for compensation such as payslips, emails, and letters

What if I have less than two years service? 

You can usually only claim constructive dismissal if you are an employee with two continual years service. However, there are some exceptions to this rule, and these are:

  • Discrimination
  • You resigned for the reason that is ‘automatically unfair.’

What is an automatically unfair reason?

If you have had to resign due to the way you have been treated that breaches your contract, then it will fall under the category of being automatically unfair. 

Examples can include:

  • Treatment due to being pregnant or on maternity leave
  • Asking for your legal rights to be fulfilled. This could include requesting the minimum wage
  • Reporting a breach of health and safety issues
  • You reported your employer for wrongdoings. This is also termed as whistleblowing.

I have been discriminated against but worked for my employer for less than two years. Can I claim for constructive dismissal?

You can make a constructive dismissal claim if your employer is guilty of discrimination. You will not need to have been employed for over 2 years to lodge a case.  

Examples of discrimination or unfair treatment can include:

  • You are from a particular race, ethnic group, or country
  • Married or in a civil partnership
  • Pregnant or on maternity leave
  • Disabled
  • Being lesbian, gay, bisexual, or transgender
  • Having a particular religion, view or set of beliefs
  • Being older or younger than the people you work with
  • Based on your gender

Need help proving constructive dismissal!
To bring a claim for constructive unfair dismissal in the employment tribunal and have the law on your side, contact an employment lawyer now!

How do I start my claim for constructive dismissal?

By adhering to the following steps you can improve your chances of success. 

1. Speak to upper management or human resources

You will need to show that you have tried to resolve your issues with your employer. It is best to speak to someone more senior than the person you are accusing. 

You will need to do this even if you have no intention of continuing your employment due to a breakdown of trust.

2. Lodge a complaint or grievance

Your employer should have an official complaints process and you should follow this if step one does not resolve your problem. 

By making a grievance your employer is legally obligated to make enquiries and seek a resolution.

If your employer does not acknowledge your complaint you can also contact ACAS (The Advisory, Conciliation and Arbitration Service) who may be able to assist you further.

3. Claim for constructive dismissal 

If the above actions do not result in a resolution, then you should consider resigning without notice. Before doing this, we recommend that you speak to an employment professional to safeguard your position. 

By quitting your job, you may not be eligible to claim for Jobseekers Allowance for 26 weeks. Besides, moving straight onto a new job can also harm your case. Your opponent could argue that you left for a better role and not due to a breach of contract.

Key Takeaway

Some constructive dismissal cases can be quite straightforward, whereas others can be complex and more tactical.

You can always do your part by following the above steps and ensuring that you evidence your claim appropriately. 

If you are worried that your current work situation is untenable, then contact one of our employment lawyers today for further advice. 

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