Claiming constructive dismissal

You might have a constructive dismissal claim if you resigned because your employer forced you to work different hours, in a different place or for less money.

However, a tribunal could find these changes were fair if your employer:

• made a change which your contract specifically says they could

• consulted you before making the changes

• made the changes as an alternative to something worse, like making people redundant

There’s no legal definition of bullying. This means some employers try to justify their behaviour or say it isn’t an issue.

For example, if you feel bullied because your manager constantly criticises you, they might say you’re too sensitive about their management style. Or if you’re often called names that make you feel uncomfortable, your employer might say it’s just banter.

It’s up to you to decide if the way you’re being treated is serious enough for you to resign.

It’s a good idea to report bullying or threatening behaviour before you decide to resign. This would give your employer the chance to stop it. If you don’t feel comfortable speaking to your manager, you could try reporting it to their manager or your HR department. If they don’t do anything about the bullying, you could have a strong constructive dismissal claim.

However, there are some situations where resigning and leaving without notice will clearly be the best option.  For example, if you feel that:

• you’re being repeatedly bullied by your colleagues or employer

• you’re frightened to go into work

• you don’t feel safe at work

Tell your employer in writing that you’re resigning because of bullying. This will mean you’ve got evidence of why you resigned if you want to make a constructive dismissal claim.

You probably can’t make a constructive dismissal claim, except in a few situations. 

You don’t need to have worked for your employer for 2 years if your claim is because of:

• a reason that’s always ‘automatically unfair’

• discrimination

Check if it’s ‘automatically unfair’

It’s always ‘automatically unfair’ if you had to resign due to being treated unfairly in a way that amounts to a breach of contract because you:

• are pregnant or on maternity leave

• have asked for your legal rights at work, eg to be paid minimum wage

• took action about a health and safety issue

• work in a shop or a betting shop and refused to work on a Sunday

• are a trade union member and took part in trade union activities including official industrial action or you were acting as an employee representative

• have reported your employer for wrongdoing, which is called whistleblowing

If you’ll have worked for your employer for at least 2 years when your job ends, it’s also automatically unfair if you’re dismissed because:

• the business was transferred to another employer

• you didn’t declare a spent conviction

Check for discrimination

You can make a constructive dismissal claim if you resigned because your employer discriminated against you.

It might be discrimination if you were treated unfairly because you are or are seen to be:

• pregnant or on maternity leave

• from a particular race, ethnicity or country

• married or in a civil partnership

• a man or a woman

• disabled

• lesbian, gay, bisexual or trans (LGBT)

• have a particular religion or set of beliefs

• older or younger than the people you work with

Get advice

In practice, it’s not always easy to tell if you’ve been treated in a way that’s automatically unfair or discriminatory. If you feel the real reason could be automatically unfair or discrimination, it’s a good idea to talk to an adviser.