Constructive Dismissal: When You Can Treat Yourself as Dismissed
Constructive Dismissal: When You Can Treat Yourself as Dismissed
Last updated: December 2025 Applies to: England, Wales and Scotland. Not tailored to Northern Ireland.
Important: This guide provides information about UK employment law. It is not legal advice. Every situation is different. If you're thinking of resigning over your employer's behaviour, speak to a solicitor for advice specific to your circumstances.
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. In legal terms, they forced you out.
To claim, you need to show three things: your employer committed a serious breach of contract, you resigned because of that breach, and you didn't wait too long before resigning.
You have 3 months minus one day from your resignation date to start ACAS early conciliation. Compensation can reach £118,223 (the current cap), or more if discrimination was involved.
Coming change: From 1 January 2027, the qualifying period drops from 2 years to 6 months, and the compensation cap will be abolished entirely.
What Counts as Constructive Dismissal?
The legal test comes from Western Excavating v Sharp [1978]. Four elements must be present:
- 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
The second element is where most cases turn. Not every bad thing your employer does amounts to a fundamental breach. Being passed over for a promotion? Frustrating, but probably not enough. A 20% pay cut without your agreement? That's different.
The Implied Term of Trust and Confidence
Most successful claims rely on the implied term of mutual trust and confidence, established in Malik v BCCI [1997].
Every employment contract includes an unwritten term that your employer won't, without reasonable cause, behave in a way calculated or likely to destroy or seriously damage the trust between you.
Bullying, humiliation, failing to address harassment, singling someone out — none of these might breach a specific written term, but they can all breach the implied term.
Common Employer Breaches
Pay and Financial Terms
- Unpaid or late wages — Money is at the heart of the employment relationship. Repeated failures to pay typically amount to a fundamental breach.
- Unilateral pay cuts — Reducing your salary without agreement breaches your contract, regardless of business circumstances.
- Removing benefits without consent — Taking away a company car, pension contributions, or bonus entitlements you were promised.
Role and Status Changes
- Demotion without agreement — If your contract says Senior Manager and they demote you to a junior role, that breaches an express term.
- Significant changes to duties — Stripping responsibilities or assigning demeaning tasks can breach trust and confidence, even if your title stays the same.
- Unreasonable relocation — Requiring you to move to a distant workplace without a contractual mobility clause.
Treatment and Working Environment
- Bullying or harassment — Particularly where management is involved or fails to address it.
- Discrimination — Treating you less favourably because of a protected characteristic 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.
Process Failures
- Unfair disciplinary action — Fabricated allegations, inadequate hearings, or disproportionate sanctions.
- Suspension without reasonable grounds — 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. The law recognises this through the "last straw" doctrine from London Borough of Waltham Forest v Omilaju [2005].
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 together amounts to a fundamental breach.
Example: Your manager has undermined you for months — criticising you in meetings, excluding you from decisions, taking credit for your work. Then they send a curt email questioning your commitment. That email, trivial alone, could be the last straw.
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 later.
Timing: Don't Resign Too Fast or Too Slow
Resigning too quickly: Walking out in the heat of the moment without establishing a breach means you might just be... resigning. Tribunals expect employees to act reasonably. That usually means raising concerns through a grievance first.
Waiting too long: Carrying on for months without complaint risks being seen as having "affirmed" the contract — accepted the breach and waived your right to resign over it.
The balance: You don't have to resign immediately. Taking reasonable time to consider 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: Practical Checklist
Document everything — Keep contemporaneous records of incidents. Emails and messages are valuable evidence. Notes made at the time are more persuasive than memories six months later.
Consider raising a grievance — Creates a paper trail, gives your employer a chance to fix things, and shows the tribunal you acted reasonably.
Get legal advice — A solicitor can assess whether your situation amounts to a fundamental breach. Many offer free initial consultations.
Check your financial position — Resigning means no notice pay (unless negotiated), potential benefit delays, and uncertain tribunal outcomes.
Think about what you want — Compensation? A reference? Sometimes a negotiated exit with a settlement agreement achieves more than a tribunal claim.
Time Limits: The 3-Month Deadline
You must start ACAS early conciliation 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 — the day you resign (if leaving immediately) or the end of your notice period (if you work it).
From October 2026: The Employment Rights Act 2025 extends this deadline to 6 months. This is now law but hasn't come into force yet. Until October 2026, work to the current 3-month deadline.
The Qualifying Period
A successful constructive dismissal claim is treated as unfair dismissal, so the same qualifying period applies. You currently need 2 years' continuous service.
If you have less than 2 years, you generally can't claim constructive dismissal — but there are 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 "automatically unfair" dismissals.
From 1 January 2027: The Employment Rights Act 2025 reduces the qualifying period to 6 months. Anyone with 6+ months' service on that date gains protection immediately. Anyone hired from 1 July 2026 will qualify after 6 months.
Employment Rights Act 2025: What's Changing
The Employment Rights Act 2025 received Royal Assent on 18 December 2025 — the biggest overhaul of UK employment law in a generation. Changes will be phased in over 2026 and 2027.
| Change | Date | Impact |
|---|---|---|
| Tribunal time limits extended to 6 months | October 2026 | Longer to bring a claim after resigning |
| Qualifying period reduced to 6 months | 1 January 2027 | No more 2-year rule |
| Compensation cap abolished | 2027 (date TBC) | Awards based on actual loss with no upper limit |
| Fire-and-rehire restrictions | October 2026 | Dismissing and re-engaging on worse terms becomes automatically unfair |
| Third-party harassment liability | October 2026 | Employers liable for harassment by customers/clients |
Until these changes take effect, current rules apply. Don't assume new rights until confirmed as in force.
For latest updates:
Compensation: What Could You Receive?
Basic Award
Calculated like statutory redundancy pay, based on age, weekly pay (capped at £719 from April 2025), and length of service:
- 1.5 weeks' pay for each year aged 41+
- 1 week's pay for each year aged 22-40
- 0.5 weeks' pay for each year under 22
Maximum basic award: £21,570 (April 2025).
Compensatory Award
Covers actual financial losses: lost earnings, benefits, and job-hunting expenses.
Maximum: £118,223 or 52 weeks' gross pay (whichever is lower) — April 2025 figures.
No cap applies if you were forced out due to:
- Whistleblowing
- Health and safety reasons
- Discrimination
Adjustments
Your compensation may be increased by up to 25% if your employer unreasonably failed to follow the ACAS Code of Practice.
It may be reduced if:
- Your conduct contributed to the situation
- You failed to mitigate your loss
- You unreasonably failed to follow the ACAS Code
- The employer would have dismissed you anyway ("Polkey reduction")
If Discrimination Was Involved
You may also claim injury to feelings under the Vento bands (April 2025):
| Band | Amount | For |
|---|---|---|
| Lower | £1,200 – £12,100 | Less serious one-off incidents |
| Middle | £12,100 – £36,400 | Serious cases |
| Upper | £36,400 – £60,700 | Most serious cases |
| Exceptional | Above £60,700 | Only exceptional cases |
Reality check: The median tribunal award for unfair dismissal in 2023/24 was around £13,000. Most cases settle before a full hearing.
What Makes a Strong Case?
The strongest cases share these features:
- Clear documentation — Emails, messages, dated notes of incidents
- A pattern of behaviour — Or a single serious breach that's objectively unreasonable
- Evidence you raised concerns — Grievance, written complaints, conversation records
- Resignation clearly linked to the breach — Not delayed too long, not motivated by other factors
- Professional advice before resigning — Shows you didn't act rashly
Employers look for weaknesses: that the breach wasn't serious enough, that you waited too long, or that you left for other reasons. Anticipating these arguments strengthens your position.
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 it as terminated immediately. Some people work notice for financial reasons — this doesn't necessarily undermine your claim.
Can I claim if I've already found another job?
Yes, but your employer might argue you resigned for the new opportunity. You'll need to show you started job-hunting because of their behaviour and would have resigned regardless.
What's the difference between constructive dismissal and unfair dismissal?
Unfair dismissal: your employer fires you without fair reason or process. Constructive dismissal: you resign, but the law treats it as dismissal because your employer's breach left you no choice. Compensation is calculated the same way.
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. Exceptions exist — if the person you'd complain to is the problem, or the breach is so serious 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 tribunal uncertainty. Don't sign without independent legal advice (your employer should pay for this).
I resigned months ago. Is it too late?
If more than 3 months minus one day have passed since your last day, probably yes. Tribunals rarely extend time limits. From October 2026, the deadline extends to 6 months — but this won't apply retrospectively.
How Yerty Can Help
For guidance on constructive dismissal claims, including eligibility, evidence checklists, deadline information, and next steps, explore our Constructive Dismissal Claims package. Learn more about our claims packages — create a free account to get started.
Sources
- "Constructive dismissal", ACAS — www.acas.org.uk/dismissals/constructive-dismissal
- "Dismissal: your rights", Gov.uk — www.gov.uk/dismissal
- "Employment Rights Act 2025", ACAS — www.acas.org.uk/employment-rights-bill
- Employment Rights Act 1996 — www.legislation.gov.uk/ukpga/1996/18
- Western Excavating (ECC) Ltd v Sharp [1978] ICR 221
- Malik v BCCI [1997] UKHL 23
- London Borough of Waltham Forest v Omilaju [2005] ICR 481