Constructive Dismissal Tribunal

Constructive dismissal occurs when an employee feels they have no choice but to resign due to their employer’s serious or fundamental breach of contract. Unlike unfair dismissal, where the employer terminates employment, constructive dismissal involves the employee resigning after intolerable conduct by the employer. Understanding the legal framework around such resignations is crucial for both employees and employers to protect their rights and obligations.

At Hopkins Solicitors, we appreciate the stress and uncertainty that constructive dismissal claims can cause. This guide will explain what constitutes constructive dismissal, outline the tribunal process, and offer practical advice for both employees considering a claim and employers aiming to prevent disputes. With clarity on legal requirements and case law, you can navigate these complex issues confidently and effectively.

Understanding Constructive Dismissal 

What Constitutes Constructive Dismissal? 

Constructive dismissal arises when an employer’s conduct fundamentally breaches the terms of the employment contract, effectively forcing the employee to leave. Key examples include:

• Failure to Pay Wages: Repeated or unexplained non‑payment or delay in wages constitutes a fundamental breach.
• Unilateral Changes to Duties or Hours: Significant alterations to job responsibilities, working hours, or location without consent may justify resignation.
• Harassment or Bullying: Permitting or ignoring workplace bullying, harassment, or discrimination breaches the implied term of mutual trust and confidence.
• Failure to Investigate Grievances: Ignoring formal complaints about serious misconduct denies the employee a remedy and undermines trust.

Before resigning, employees should ensure that the breach is fundamental – that is, severe enough to destroy the employment relationship. Minor grievances or occasional lapses will not normally justify a constructive dismissal claim.

Legal Foundations and Case Law 

The principal statutory underpinning is the Employment Rights Act 1996, which defines constructive dismissal as resignation in response to a serious breach. Central to the Act is the implied term that employers must not, without reasonable cause, destroy or seriously damage the relationship of trust and confidence with employees.

One landmark case is Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, where the Court of Appeal held that an employee must resign in prompt response to the employer’s breach and not delay unduly. Further, Malik v Bank of Credit and Commerce International (in liquidation) [1998] AC 20 confirmed that employers owe a broad duty to maintain trust.

Together, these cases establish that both the seriousness of the breach and the timing of resignation are essential to a successful claim. Employees should seek legal advice to assess whether their conduct meets these legal thresholds.

Employee Guidance: How to Bring a Claim 

Identifying Grounds for Claim 

Employees considering constructive dismissal must first determine if the employer’s conduct amounts to a fundamental breach. Key steps include:

1. Document the Breach: Keep a record of dates, incidents, emails, and witness statements to support your claim.
2. Assess Severity: Ask whether the conduct would entitle you to resign and claim breach of contract – examples include bullying, unlawful deductions, or unilateral contract changes.
3. Seek Preliminary Advice: Consult a solicitor or a legal advice service to evaluate the strength of your case and consider whether to raise a formal grievance first.

Resigning without evidence or legal guidance can undermine your claim. A well‑documented file and professional advice help establish that resignation was a last resort.

Starting a Tribunal Claim 

Before submitting an ET1 claim form, employees must notify ACAS and participate in early conciliation. The steps are:

1. Contact ACAS: Register for Early Conciliation online or by phone. This is compulsory and can help resolve disputes without tribunal proceedings.
2. Early Conciliation Period: ACAS provides a conciliation officer to facilitate agreement. If no settlement is reached in the statutory period, ACAS issues a Certificate of Early Conciliation.
3. Submit ET1 Form: Complete the Employment Tribunal claim form (ET1) within three months less one day from the date of resignation or breach.
4. Pay Attention to Deadlines: Late claims are unlikely to be accepted except in exceptional circumstances.

Following ACAS conciliation and properly lodging the ET1 form ensures compliance with procedural rules and lays the groundwork for tribunal hearings.

Request a Callback

Employer Guidance: Preventing and Responding to Claims 

Creating a Legally Compliant Workplace 

Employers can minimise the risk of constructive dismissal claims by establishing robust policies and training:

• Clear Grievance and Disciplinary Procedures: Publish and enforce policies that outline how employees can raise concerns and how the company investigates and resolves issues.
• Anti‑Bullying and Discrimination Training: Provide regular training on workplace respect, equality, and inclusion to promote a safe environment.
• Contractual Clarity: Ensure employment contracts clearly define roles, duties, and change‑management procedures. Include clauses on notice periods and variation mechanisms.
• Proactive Management: Encourage open dialogue, conduct regular performance reviews, and address concerns promptly before they escalate.

By demonstrating fairness and transparency, employers reinforce mutual trust and reduce grounds for breach.

Managing Claims Effectively 

When faced with a constructive dismissal claim, employers should:

1. Conduct Thorough Investigations: Assign an impartial investigator to gather evidence, interview witnesses, and review documentation.
2. Engage Legal Representation: Involve employment law solicitors early to advise on strategy, liaise with ACAS, and prepare tribunal responses.
3. Maintain Detailed Records: Keep contemporaneous notes of meetings, emails, and investigations to support your defence.
4. Respond to Tribunal Notices Promptly: Adhere to deadlines for submitting ET3 responses and consider conciliatory measures where appropriate.

A timely, professional approach can mitigate financial risk and preserve the employer’s reputation.

Tribunal Process and Outcomes 

What Happens at a Tribunal 

Employment tribunals are less formal than courts but follow structured procedures:

• Pre‑Hearing Case Management: Both parties exchange documents, witness statements, and prepare bundles.
• Hearing Structure: The claimant presents their case first, followed by cross‑examination. The respondent then presents its defence, and the claimant may re‑examine witnesses.
• Tribunal Panel: Usually a judge and two lay members (one employee representative and one employer representative) decide on facts and law.
• Burden of Proof: The claimant must establish on the balance of probabilities that the employer’s breach justified resignation.

Tribunals aim to be accessible, but legal representation is strongly advised to navigate procedural and evidential complexities.

Remedies and Compensation 

If a tribunal finds in favour of the employee, remedies may include:

• Financial Compensation: Loss of earnings from resignation date to judgment and future losses, including pension loss.
• Reinstatement or Re‑engagement: Rarely ordered, but tribunals can require employers to reinstate employees or offer alternative positions.
• Injunctive Relief: In exceptional cases, tribunals can restrain employers from specified conduct.

Compensation is calculated by considering actual losses (e.g., salary, benefits, pension), basic awards (based on age, length of service, and weekly pay), and any uplifts for unreasonable employer behaviour. Legal costs are generally not recoverable except in limited circumstances.

Request a Callback

How Hopkins Solicitors Can Help 

Navigating a constructive dismissal claim requires specialist knowledge and tailored guidance. At Hopkins Solicitors, we support:

• Employees: Advising on grounds for claim, preparing ACAS conciliation, and representing clients at tribunal hearings to maximise compensation.
• Employers: Reviewing policies, conducting investigations, and defending claims through robust legal representation to reduce liability.

Our team combines years of employment law expertise with a client‑centred approach, ensuring clear communication and strategic advice at every stage. Whether you seek to pursue a claim or to prevent one, Hopkins Solicitors delivers pragmatic solutions to achieve the best possible outcome.

Conclusion 

Constructive dismissal claims present significant legal and emotional challenges. Recognising when an employer’s conduct amounts to a fundamental breach and understanding the procedural requirements, such as ACAS conciliation and strict tribunal deadlines, are essential steps for both employees and employers.

By fostering a culture of transparency and trust, employers can minimise the risk of disputes. Conversely, employees equipped with thorough evidence and expert legal support stand the best chance of success. For dependable guidance and representation, contact Hopkins Solicitors. Our experts will help you navigate complex employment law matters, protect your rights, and achieve a fair resolution.

Request a Callback