Constructive Dismissal: When You Can Treat Yourself as Dismissed
This guide explains constructive dismissal law in England, Wales and Scotland as it stands in December 2025. The Employment Rights Bill is currently passing through Parliament and will change some of these rules from 2026 onwards — see the section on upcoming changes below.
This is information, not legal advice. If you're thinking of resigning over your employer's behaviour, speak to a solicitor first.
Quick Summary
Constructive dismissal happens when your employer's conduct is so serious that you're entitled to resign and treat yourself as having been dismissed. You don't quit — in legal terms, they forced you out.
To claim, you'll need to show three things: your employer committed a serious breach of contract, you resigned because of that breach (not for some other reason), and you didn't wait too long before resigning. You then have 3 months minus one day from your resignation date to start ACAS early conciliation.
Get this right and you could claim compensation. Get it wrong — resign too hastily, or hang on too long — and you may lose the right to claim anything.
What Actually Counts as Constructive Dismissal?
The legal test comes from a 1978 case called Western Excavating v Sharp. It's straightforward in principle:
- Your employer breached your contract
- The breach was serious enough to justify resignation (a "fundamental" or "repudiatory" breach)
- You resigned in response to that breach
- You didn't do anything to suggest you'd accepted the breach and were staying anyway
The tricky part is that second element. Not every bad thing your employer does amounts to a fundamental breach. Being passed over for a promotion you deserved? Frustrating, but probably not enough. Your boss cutting your salary by 20% without agreement? That's a different story.
The Implied Term of Trust and Confidence
Most successful constructive dismissal claims don't rely on an obvious breach like unpaid wages. Instead, they're based on something more subtle: the implied term of mutual trust and confidence.
Every employment contract includes an unwritten term that your employer won't, without reasonable cause, behave in a way that's calculated or likely to destroy or seriously damage the relationship of trust between you. That wording comes from Malik v BCCI (1997) and it covers a lot of ground.
Bullying, humiliation, failing to address harassment, singling someone out for unfair treatment — none of these might breach a specific written term in your contract, but they can all breach the implied term.
Common Employer Breaches That Can Justify Resignation
Here's what tribunals regularly see:
Pay and Financial Terms
Unpaid or late wages — If your employer stops paying you, pays you late repeatedly, or makes unauthorised deductions, that's typically a fundamental breach. Money is at the heart of the employment relationship.
Unilateral pay cuts — Reducing your salary without your agreement breaches your contract. It doesn't matter if the business is struggling. They need your consent.
Removing benefits without consent — Taking away a company car, pension contributions, or bonus entitlements you were contractually promised can amount to a breach.
Role and Status Changes
Demotion without agreement — If your contract says you're a Senior Manager and they demote you to a junior role, that's a breach of an express term.
Significant changes to duties — Stripping away your responsibilities or giving you demeaning tasks can breach the implied term of trust and confidence, even if your job title stays the same.
Unreasonable relocation — Requiring you to move to a distant workplace without a contractual mobility clause (or outside the scope of one) may be a breach.
Treatment and Working Environment
Bullying or harassment — Particularly where management is involved or fails to address it. Tribunals take a dim view of employers who let toxic behaviour fester.
Discrimination — Treating you less favourably because of a protected characteristic (age, sex, race, disability, etc.) is both discrimination and typically a breach of the implied term.
Failure to address grievances — Ignoring a serious complaint or conducting a sham investigation can itself be a fundamental breach.
Unsafe working conditions — Employers have a duty to provide a safe workplace. Serious failures can justify resignation.
Process Failures
Unfair disciplinary action — Fabricated allegations, kangaroo-court hearings, or disproportionate sanctions can breach trust and confidence.
Suspension without reasonable grounds — Suspension should be a neutral act, but unreasonably long or unjustified suspension can cross the line.
The "Last Straw" Doctrine
Sometimes there's no single dramatic event — just a pattern of behaviour that wears you down. The law recognises this through the "last straw" doctrine.
The final incident doesn't need to be serious on its own. It can be relatively minor, provided it's part of a course of conduct that, taken together, amounts to a fundamental breach. The last straw simply tips the scales.
However, the last straw must contribute something to the breach — it can't be entirely innocuous. And you need to resign in response to it, not weeks or months later.
A practical example: your manager has been undermining you for months — criticising you in meetings, excluding you from decisions, taking credit for your work. None of these incidents alone might be enough. Then they send a curt email questioning your commitment. That email, trivial in isolation, could be the last straw that entitles you to resign.
Timing Matters: Don't Resign Too Fast or Too Slow
This is where people often go wrong.
Resigning too quickly: If you walk out in the heat of the moment without establishing that a breach has occurred, you might just be... resigning. Tribunals expect employees to behave reasonably. That usually means raising concerns through a grievance first, unless the situation is so serious that this would be pointless.
Waiting too long: If your employer breaches your contract and you carry on working for months without complaint, you risk being seen as having "affirmed" the contract — accepted the breach and waived your right to resign over it. There's no fixed time limit, but the longer you wait, the harder it becomes to argue you resigned because of the breach.
The balance: You don't have to resign immediately. Taking reasonable time to consider your options, seek advice, or pursue a grievance won't usually count as affirmation. But continuing to work normally for an extended period without protest probably will.
Before You Resign: A Practical Checklist
Resigning is irreversible. Before you hand in your notice:
1. Document everything Keep a contemporaneous record of incidents — dates, times, what was said, who witnessed it. Emails and messages are gold. Your memory of events six months later won't be as persuasive as notes made at the time.
2. Consider raising a grievance This isn't legally required, but it's often sensible. A grievance creates a paper trail, gives your employer a chance to fix things (which strengthens your position if they don't), and shows the tribunal you acted reasonably. There are exceptions — if you're being bullied by the person who'd handle your grievance, for instance, this might be pointless.
3. Get legal advice Constructive dismissal claims require careful preparation. A solicitor can assess whether your situation amounts to a fundamental breach and advise on the best approach. Many offer free initial consultations.
4. Check your financial position Resigning means no notice pay (unless you negotiate an exit), potential delays to benefits, and uncertain tribunal outcomes. Make sure you can afford the gap.
5. Think about what you actually want Compensation? A reference? An apology? Sometimes a negotiated exit with a settlement agreement gets you more than a tribunal claim ever would — with less stress and a quicker resolution.
Time Limits: The 3-Month Deadline
If you're going to bring a tribunal claim for constructive dismissal, you must start the ACAS early conciliation process within 3 months minus one day of your resignation date.
Miss this deadline and your claim is likely finished. Tribunals can extend time in exceptional circumstances, but "I didn't know about the deadline" rarely qualifies.
The clock starts from your last day of employment — which might be the day you resign (if you leave immediately) or the end of your notice period (if you work it).
Coming change (October 2026): The Employment Rights Bill will extend this deadline to 6 months. However, as of December 2025, this hasn't come into force. Don't rely on a change that hasn't happened — work to the current 3-month deadline until you see confirmation the new rules are in effect.
Qualifying Period for Constructive Dismissal Claims
A successful constructive dismissal claim is treated as an unfair dismissal, which means the same qualifying period applies. You currently need 2 years' continuous service with your employer to bring a claim.
If you have less than 2 years' service, you generally can't claim constructive dismissal — but there are important exceptions. No qualifying period applies if your resignation relates to:
- Discrimination (any protected characteristic)
- Whistleblowing
- Asserting a statutory right
- Health and safety concerns
- Trade union activities
These are called "automatically unfair" dismissals.
Coming change (2027): The Employment Rights Bill will introduce day-one unfair dismissal rights, removing the 2-year qualifying period. However, there will be a statutory probationary period (the government is consulting on whether this should be 6 or 9 months) during which a "lighter touch" dismissal process will apply. The details are still being finalised. Until then, the 2-year rule applies.
The Employment Rights Bill: What's Changing?
The Employment Rights Bill is currently passing through Parliament (as of December 2025, it's in the final "ping pong" stage between the Commons and Lords). Once it receives Royal Assent, changes will be phased in over 2026 and 2027.
What this means for constructive dismissal claims:
| Change | Expected Date | Impact |
|---|---|---|
| Tribunal time limits extended to 6 months | October 2026 | You'll have longer to bring a claim after resigning |
| Day-one unfair dismissal rights | 2027 | No more 2-year qualifying period (though a probationary period will apply) |
| Fire-and-rehire restrictions | October 2026 | Dismissing and re-engaging on worse terms becomes automatically unfair in most cases |
| Third-party harassment liability | October 2026 | Employers liable for harassment by customers/clients unless they took all reasonable steps |
Important: These dates are based on the government's July 2025 roadmap. The Bill is still being debated and could change before Royal Assent. Don't assume new rights apply until they're confirmed as in force.
For the latest updates, check:
- ACAS Employment Rights Bill page: www.acas.org.uk/employment-rights-bill
- Gov.uk: Implementing the Employment Rights Bill: www.gov.uk/government/publications/implementing-the-employment-rights-bill
What Compensation Could You Receive?
If you win a constructive dismissal claim, compensation typically has two parts:
Basic Award Calculated like statutory redundancy pay — based on your age, weekly pay (capped at £719 from April 2025), and length of service. The formula uses:
- 1.5 weeks' pay for each year of employment after age 41
- 1 week's pay for each year between ages 22-40
- 0.5 weeks' pay for each year under age 22
Maximum basic award: £21,570 (April 2025).
Compensatory Award Covers your actual financial losses: lost earnings, benefits (including company car, private medical insurance, pension), and expenses finding new work. The cap is the lower of £118,223 or 52 weeks' gross pay (April 2025 figures).
Unlike in a straightforward unfair dismissal claim, if you find new employment during what would have been your notice period, those earnings are deducted from your compensatory award.
ACAS Uplift If your employer unreasonably failed to follow the ACAS Code of Practice on grievances or disciplinary procedures, your compensation can be increased by up to 25%. Conversely, if you unreasonably failed to follow it, your award can be reduced by up to 25%.
Reductions The tribunal may reduce your award if your own conduct contributed to the situation, or if the employer can show they would have dismissed you anyway even with a fair process (known as a "Polkey reduction").
Discrimination claims If your constructive dismissal involved discrimination or whistleblowing, compensation is uncapped and can include an award for injury to feelings.
Reality check: The median tribunal award for unfair dismissal claims in 2023/24 was around £13,000. However, the majority of cases settle before reaching tribunal — often achieving better outcomes than contested hearings, with less stress and legal cost.
What Makes a Strong Constructive Dismissal Case?
Constructive dismissal claims require careful preparation, but they succeed regularly when the evidence is solid.
The strongest cases typically share these features:
- Clear documentation of the breach — emails, messages, dated notes of incidents
- A pattern of behaviour or a single serious breach that's objectively unreasonable
- Evidence you raised concerns — a grievance, written complaints, or records of conversations
- Resignation that's clearly linked to the breach — not delayed too long, and not obviously motivated by other factors (like a new job offer)
- Professional advice before resigning — showing you didn't act rashly
Employers will look for weaknesses: that the breach wasn't serious enough, that you waited too long (affirming the contract), or that you really left for other reasons. Anticipating these arguments and having clear answers strengthens your position.
Many constructive dismissal situations resolve through negotiation rather than tribunal — often achieving a settlement agreement with better terms than a contested hearing would deliver. A solicitor can help you assess whether to pursue a claim, negotiate an exit, or both.
Frequently Asked Questions
Do I have to give notice if I'm resigning due to constructive dismissal? No. If your employer has fundamentally breached the contract, you can treat the contract as terminated immediately. That said, some people choose to work notice for financial reasons — this doesn't necessarily undermine your claim, but get advice on your specific situation.
Can I claim constructive dismissal if I've already found another job? Yes, but it complicates things. Your employer might argue you resigned for the new opportunity, not because of their breach. You'll need to show you started job-hunting because of their behaviour and that you would have resigned even without another job to go to.
What's the difference between constructive dismissal and unfair dismissal? Unfair dismissal is when your employer dismisses you without a fair reason or fair process. Constructive dismissal is when you resign, but the law treats it as if you were dismissed because your employer's breach of contract left you no real choice. If your constructive dismissal claim succeeds, you receive compensation calculated the same way as for unfair dismissal — but the two situations are different. In one, you're fired; in the other, you're forced out.
Should I raise a grievance before resigning? Usually, yes. It creates a paper trail, shows you acted reasonably, and gives your employer a chance to fix things. But there are situations where it's pointless — if the person you'd complain to is the problem, or if the breach is so serious that the relationship is beyond repair.
My employer is offering a settlement agreement. Should I take it? Settlement agreements can be a good outcome — guaranteed money now versus the uncertainty, cost, and stress of a tribunal. But don't sign anything without independent legal advice (your employer should pay for this). Make sure you understand what you're giving up.
I resigned months ago. Is it too late to claim? If more than 3 months minus one day have passed since your last day of employment, probably yes. Tribunals rarely extend time limits. If you're close to the deadline, contact ACAS immediately. (Note: from October 2026, the deadline is expected to extend to 6 months — but this doesn't apply retrospectively to resignations before that date.)
Next Steps
If you think you have a constructive dismissal situation:
- Don't resign yet — get advice first
- Document what's happened — build your evidence
- Consider a grievance — create a paper trail
- Speak to a solicitor — many offer free initial assessments
- Know your deadline — 3 months minus one day from resignation
Yerty's platform can help you understand your options and prepare the right documents — but for something as significant as constructive dismissal, professional legal advice is essential before you make any irreversible decisions.
Sources
- ACAS: Constructive dismissal — www.acas.org.uk/dismissals/constructive-dismissal
- ACAS: Employment Rights Bill — www.acas.org.uk/employment-rights-bill
- Gov.uk: Dismissal — www.gov.uk/dismissal
- Gov.uk: Implementing the Employment Rights Bill — www.gov.uk/government/publications/implementing-the-employment-rights-bill
- Employment Rights Act 1996
- Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 — www.oxbridgenotes.co.uk/law_cases/western-excavating-v-sharp
- Malik v BCCI [1997] UKHL 23 — publications.parliament.uk/pa/ld199798/ldjudgmt/jd970612/malik01.htm
- London Borough of Waltham Forest v Omilaju [2005] ICR 481