Resignation and Constructive Dismissal Claims

Constructive dismissal claims can be the result of a wide number of complaints clients have about their employer. They have explained how they feel forced to resign for bullying at work, pay problems, unfair performance management, unfair work allocations etc. Therefore, whilst they all have constructive dismissal claims, their reasons for resigning are all very different.

We explain to all clients considering this course of action that constructive dismissal claims are very difficult to pursue and, if they are considering resigning in anticipation of such a claim at the Employment Tribunal, there are some points they need to remember:-

1 – Length of service for Constructive Dismissal Claims

Like ordinary unfair dismissal, you will usually have to have worked for your employer for two years before you can bring a claim of constructive dismissal at the Employment Tribunal. If you do not have two years’ service, there are some exceptions to the two-year rule and other types of claim (for example discrimination) which do not require any minimum period of employment before you can pursue a claim. However, this is something you need to consider before submitting your resignation in anticipation of a constructive dismissal claim.

2 – Repudiatory breach of contract

Constructive dismissal is where you submit your resignation or leave your employment in response to a serious breach of your contract of employment by your employer. Your employer’s conduct must be so serious as to be a “repudiatory breach” of your employment contract.

3 – Identify the contractual terms which have been breached

Your employer’s conduct must be more than their being unreasonable or unhelpful. It must be a repudiatory breach of a fundamental term of your employment contract. This could be an express term, for example a serious pay dispute. Alternatively, it might be a breach of an implied term, for example a serious breach of “trust and confidence”.

4 – Resign in response for Constructive Dismissal Claims

You cannot wait too long before taking action. Your resignation has to be in response to the breach of contract by your employer. If you do nothing, the Employment Tribunal may conclude you have accepted your employer’s breach of contract.

5 – Internal Procedures and Constructive Dismissal Claims

For the vast majority of employee complaints, the Employment Tribunal will expect an employee to use any internal Grievance or Complaint policy the employer has. If the employer has no such policy, they will be expected to abide by the ACAS Code of Practice on Disciplinary and Grievance Procedures in any event. Failure to use the internal policy before submitting your resignation could result in any subsequent compensation awarded be reduced by up to 25%.  For more information, please see our blog post https://lincslaw.co.uk/blog/need-to-send-a-grievance-or-complaint-to-your-employer/

What Should You Include In Your Resignation?

When you submit your resignation, you must ensure your employer knows that you are resigning in response to their breach of your contract of employment. Make your resignation letter as full and as detailed as possible. You need to:-

• Provide a brief background of your issue;
• Identify the term of your employment contract in dispute;
• State how you believe your employers have breached that term of your employment contract;
• Explain the impact upon you of your employer’s breach (have you lost money, has your health been affected etc);
• Set out your attempts to resolve the dispute (internal grievances etc) and explain why you are unhappy about the outcome; and,
• Explain you are submitting your resignation because of your employer’s breach of your contract.

Employment Tribunal Time Limits

If you do resign your employment and want to bring a claim of Constructive Dismissal at the Employment Tribunal, you need to be very clear about the time limits.  As a general rule, you must submit your claim to the Employment Tribunal within three months of your last day of employment. You use the last day of your employment as the first day when calculating the time limit. For example, if your last day of employment was 30th June, your claim would need to be submitted to the Employment Tribunal on or before 29th September.

However, please note, before submitting your claim you will first have to go through the ACAS Early Conciliation Process. Employment Tribunal time limits can be extended if you are going through the conciliation process when your Employment Tribunal time limit would normally expire. However, if you do not start the ACAS Early Conciliation Process within the normal time limit, you will not receive any extension to submit your claim.

Employment Tribunal time limits are incredibly strict and if you have been dismissed you should seek legal advice immediately. Claims submitted “out of time” will not be accepted by the Employment Tribunal and in those circumstances your ability to pursue your claim will be lost.

Let Lincs Law Employment Solicitors Help You

If you feel like you have to leave your job, before taking any steps to resign please take legal advice on your situation. You may find that after speaking with one of the qualified and experienced lawyers at Lincs Law Employment Solicitors, there are other options available to you. For example, you may be advised that before you resign you should submit a grievance to your employer; see our free downloadable guides or our blog post https://lincslaw.co.uk/blog/need-to-send-a-grievance-or-complaint-to-your-employer/

Although we hope information on our website pages are helpful, they are no substitute for legal advice about your constructive dismissal claim.  Please call us on 01522 440512 for a free, no obligation, telephone consultation.  With a combined experience of over 80 years’ as fully qualified specialist employment solicitors, we can help