Constructive Dismissal Claims Solicitors

You may be able to bring a claim for damages for breach of contract, known as wrongful dismissal. This will normally be a claim for your notice pay and any contractual benefits you would have received during your notice period. If you are employed on a fixed term contract, you may be able to claim your salary and contractual benefits for the period until the fixed term expires. Depending on the amount you are claiming, this claim can be brought in either the Employment Tribunal or the civil courts.   

You may also be able bring an unfair dismissal claim in the Employment Tribunal.

In order to make a claim for wrongful dismissal you need to show that:

• your employer has acted in serious breach of your employment contract, known as fundamental breach or repudiatory breach 
• you resigned in response to your employer’s breach without working out your notice period, or without working out all of your notice period  

You do not need to have been employed for any particular length of time to be able to claim wrongful dismissal.

In order to make a claim for constructive unfair dismissal you need to:

• have worked as an employee at the same company for at least 2 years (unless an exception applies)
• have resigned or left 
• prove that you resigned in response to your employer being in fundamental breach of your contract. Sometimes this is obvious and sometimes it is not. Numerous minor breaches over time could be grounds for a constructive dismissal claim. Resigning is a big step and it can be difficult to win a claim for constructive dismissal at an Employment Tribunal. It’s important to get legal advice before resigning so that your case has the best possible chance possible of succeeding

It is usually appropriate first to raise your concerns with your employer about the treatment you have experienced. This should normally be done in the form of a grievance in accordance with your employer’s grievance procedure, or the ACAS Code of Conduct on Disciplinary and Grievance Procedures.

While it is not essential that you raise a grievance before bringing an Employment Tribunal claim for constructive dismissal, if you do not do so, a Tribunal may reduce any compensation you are awarded by up to 25%.

Our specialist employment solicitors can advise you on whether bringing a grievance is in your best interests and how this may affect your constructive dismissal claim.

You should not delay too long before resigning in response to your employer’s actions. A delay of more than a week, or in some circumstances, even a few days may reduce your chances of success in bringing a constructive dismissal claim. If you delay in resigning, an Employment Tribunal or court may decide that you were not constructively dismissed because you accepted what your employer had done without complaining until it was too late.

Sometimes you can justify a delay in resigning because you are waiting for the outcome of a grievance process or because you have been unwell. The exact date by which you must resign so that you can claim constructive dismissal will depend on your personal circumstances and the nature of the employer’s breach. Our specialist employment law solicitors can advise you on your specific circumstances.

Your resignation should be in writing. Explain your reasons for leaving as clearly as you can. You should explain that you are leaving in response to your employer’s treatment and breach of contract and that you feel that you have no option but to leave employment. 

It is important that your resignation is clear and unambiguous. It may eventually become important documentary evidence which will assist with a constructive dismissal claim.

Our constructive dismissal experts can guide you in writing this document which could be important evidence if you ever decide to bring a constructive dismissal claim.

You can resign with or without giving notice. You are not obliged to work out your notice period if you are claiming constructive dismissal, but you may decide to do so for example, for financial reasons. The risk of you working during your notice period is that your employer may argue that you have a weak constructive dismissal claim because you have been able to stay in employment through your notice period. They might argue that if there had really been a fundamental breach, you would have resigned immediately and not felt able to work your notice period.

They might also argue that you have waived the breach by continuing to work. 

If there has been a serious breach of contract it may be more appropriate to leave employment straight away without notice. If you don’t work your notice period, you can claim the money you would have received during your notice period.

An Employment Tribunal claim for constructive unfair dismissal or for wrongful dismissal needs to be brought within three months from the date that your employment ended. This can be extended by time spent during ACAS Early Conciliation. To bring a claim, you will need to contact ACAS to begin Early Conciliation and to obtain an Early Conciliation Certificate. The Tribunal will not accept your claim without this. It is important that this step is carried out properly for your claim to be successful.

You can learn more at https://ec.acas.org.uk/

If you succeed in your constructive unfair dismissal claim, an Employment Tribunal may award you compensation that consists of:

1. A basic award of up to £544 per week (depending on your salary) for each complete year you have worked multiplied by 0.5, 1 or 1.5 depending on your age; and
2. A compensatory award which may include loss of earnings, bonus, shares, options, benefits and pension. and losses for the hurt, distress, and any personal injury caused. This only includes losses you actually suffer, so if you get a new job, this will limit the amount of compensation available. 

The compensatory award will be subject to a statutory cap of £89,493 or a year’s gross salary, whichever is lower. 

These figures change in April each year.  Our Employment Law Essentials (see right hand side of this page) contains the latest information.

If you succeed in your wrongful dismissal claim, the Employment Tribunal may award you compensation equivalent to the net value of your salary and contractual benefits for your notice period. However, the Employment Tribunal cannot award you more than £25,000. If you want to claim more than £25,000, you will need to bring your claim in the civil courts. We can advise you on this. 

You will be under a duty to mitigate your losses by taking reasonable steps to find a new job, and will need to show the Tribunal what steps you have taken to try to find a new job.

A wrongful dismissal claim in the civil courts needs to be brought within six years of the termination of employment.

If you succeed in your wrongful dismissal claim, the court may award you the net loss of your salary and contractual benefits for your notice period.  This could include any bonus or other benefits, such as pension or private medical insurance, that you would have received during your notice period. There is no cap on the amount that can be awarded but you will be under a duty to mitigate your losses by taking reasonable steps to find a new job. You will need to show the court what steps you have taken to try to find a new job.

You may bring other claims at the same time. Common examples of other claims brought are discrimination and whistleblowing. You could win those claims and be awarded even higher compensation.

The statutory cap on the compensatory award referred to above for unfair dismissal claims does not apply to constructive unfair dismissal claims which are found to arise from whistleblowing and you do not need to have worked for your employer for two years to bring a whistleblowing claim. 

If your employer has breached your employment contract, you may be free from any restrictive covenants you have in your terms and conditions of employment. However,  your employer may not see things that way and dispute any breach. Our constructive dismissal solicitors can advise you on the effect a constructive dismissal may have on your other contractual terms.