Is Constructive Dismissal Hard to Prove?

Have you ever had your contract seriously breached by your employer? Or felt forced to resign because of your employer’s hand in creating a hostile working environment and would like to put in a claim? This could be potentially considered constructive dismissal.

Constructive dismissal can be hard to prove, and few claims win at employment tribunals, but that doesn’t mean a claimant can’t be successful. With sufficient evidence, you may even be able to resolve the issue without having to quit your job.

Still unsure of how to go about the constructive dismissal process? Fear not, we’ve covered all the necessary steps that you’ll need to take to develop a strong case for your claim.

What Is Constructive Dismissal?

Constructive dismissal, to put it plainly, is when an employer’s conduct and actions make an employee’s working environment intolerable and as a result, compels them to resign. Though the employee has chosen to leave, as their employer has mistreated them, there has been a breach of contract, and so the employee is entitled to put in a claim.

In legal terms, the employer’s wrongful behaviour, which accounts for the “constructive” part has led to the employee’s resignation – the “dismissal”, which the law interprets as unfair.

Are Constructive Dismissal and Unfair Dismissal the Same?

The answer to this is no, although the two are similar.

Constructive dismissal in practical terms refers to when an employee feels forced to leave their job as a result of unjust and wrongful behaviour carried out by their employer.

Unfair dismissal describes the act of being fired unlawfully. This is usually the case when an employer has failed to follow the appropriate dismissal procedure and gave insufficient notice to the employee when firing them.

You can read further on both Unfair Dismissal & Constructive Dismissal over on the Government website.

When Can You Claim Constructive Dismissal?

You can claim for constructive dismissal when there has been a severe breach in a contract of employment by your employer. This does not have to be limited to a single incident, as it may be that your employer has committed a series of unjust actions over some time which has amounted to a breach.

Employer Actions That Could Amount to Claiming?

  • Harassment, bullying or discrimination at work by themselves or other employees
  • A significant reduction of your salary, or threat to reduce your payments with no given reason
  • Forcing you to accept changes to your working conditions or hours of work, without an agreement, or contractual right
  • Demotion without excellent and relevant reason
  • Refusal to pay you
  • Forcing the employee to work in an unsafe working environment

Is Constructive Dismissal Hard to Prove?

Employment law is very complicated, and unless you can provide evidence that your employer has radically made your job intolerable, then constructive dismissal can be hard to prove.

Make sure you read through your contract thoroughly before making any claims to ensure there are no open clauses. For example, if your employer has forced you to work in a different location, with varying hours or at a reduced salary it would be wise to make sure your contract states they are inhibited from enforcing this; otherwise, a tribunal may deem your employer’s actions to be fair.

Is Constructive Dismissal Hard to Prove?

Also, in most constructive dismissal cases, you can only claim if you have worked for your employer for at least two years. If you’ve been wrongly treated but have less than two years continual work with your employer, then a constructive dismissal claim will only be accepted in certain situations.

Either you have been discriminated against, or the reason for your claim classifies as being automatically unfair and so no qualifying period of work is required.

What Constitutes as Being Automatically Unfair That Amounts to a Breach of Contract:

  • You were either pregnant, on maternity leave, or paternity leave
  • Acted against a health and safety issue in the workplace
  • Are a member of a trade union and participated in trade union activities, or were acting as an employee representative
  • Acted to enforce statutory employment rights
  • You have performed in accordance with whistleblowing law by reporting your employer for wrongdoing

How to Prove Constructive Dismissal

There are a few essential steps that an employee should consider before looking to prove constructive dismissal.

Before resigning, you are advised to try to manage and sort the dispute between yourself and your employer first by lodging a formal grievance. This should be done in writing as it not only makes the employer aware of the issue at hand but allows your statement to go down on file. Also, keep a copy for yourself as you may need to refer to it at a later stage.

Filing a formal complaint could help the situation in several ways. First, by allowing your employer to resolve the dispute before it reaches tribunal, or as a tactical measure to support your reason for leaving, as it proves you made genuine efforts to amend the issue.

How to Prove Constructive Dismissal

It is also wise to seek legal advice from an employment law solicitor before making a constructive dismissal claim. Although this is not a legal requirement, a specialist can advise you on the strong points of your case and the prospect of it being unbeaten, which will help you better prepare.

If after lodging a formal grievance nothing changes, check to see whether your working situation corresponds to any of the actions that constitute a breach of contract. If you find that it does, leave your job immediately. While this may sound daunting, if you stay in your career, your employer could use that against you in a tribunal by stating you accepted the treatment you were receiving.

Put together a letter, which must be of exact and careful wording stating the fundamental breaches of contract your employer committed and try to gather as much evidence as you can to support your claim.

How Long After Resigning Can I Claim Constructive Dismissal?

You have exactly three months, minus a day from the date you handed in your resignation to make a constructive dismissal claim.

Before resigning, again, it is strongly recommended that you seek legal advice as to whether you do or don’t work your notice period as this may affect the success of your case.

How Long After Resigning Can I Claim Constructive Dismissal?

In your resignation letter, make your reason for leaving crystal clear, a convoluted resignation may make it appear as if your reason for leaving wasn’t due to your employer’s behaviour. 

Do not use glowing vocabulary, or thank your employer as that doesn’t depict the character of someone who is feeling forced to leave, and that could be used against you.

Also, please be aware that even if your constructive dismissal claim is successful, the compensation you receive could be limited. Sometimes employees and employers negotiate settlement agreements before the employee resigns, but this comes with significant risk, and so you should seek legal guidance if you are considering this prospect.

Ultimately, the constructive dismissal process is a complicated one, and you should seek legal advice before making any rash decisions. In most cases, employees who have not sought legal counsel have not been successful, and it’s best to have a tactical advantage when going to tribunal.

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