Many employees believe that once they resign, they automatically lose any legal rights against their employer. In reality, this is not always the case. In certain circumstances, the law in England and Wales recognises that a resignation may not be a genuine choice at all. This is known as constructive dismissal.
Constructive dismissal occurs when an employer’s conduct is so serious that it fundamentally breaches the employment contract, leaving the employee with no reasonable option but to resign. These claims are complex, heavily dependent on timing and evidence, and often misunderstood. At Penerley Solicitors in Canary Wharf, we regularly advise employees who feel forced out of their roles and are unsure whether they still have legal protection.
Understanding how constructive dismissal works, and what steps to take before resigning, is critical. Acting too quickly, or too slowly, can affect whether you are able to bring a successful claim.
What is constructive dismissal in England and Wales?
Under the Employment Rights Act 1996, constructive dismissal is treated as a form of unfair dismissal, even though the employee resigns rather than being formally dismissed. For a claim to succeed, three key elements must usually be present.
First, there must be a fundamental breach of contract by the employer. This means a serious failure, not a minor issue. The breach may relate to written terms such as pay, hours, or job role, or to implied duties such as trust and confidence.
Second, the employee must resign in response to that breach. The resignation must be clearly linked to the employer’s behaviour, not to an unrelated reason.
Third, the employee must resign without unreasonable delay. If an employee stays too long after the breach, the law may say they have accepted the behaviour and lost the right to claim.
Examples of conduct that may amount to a fundamental breach include:
• Serious bullying or harassment
• Sudden demotion or major change in duties
• Unlawful reduction in pay or benefits
• Unsafe working conditions
• Failure to address grievances
Not every workplace problem will qualify. The courts will assess whether the employer’s actions were serious enough to destroy the employment relationship.
Common mistakes employees make before resigning
One of the biggest risks in constructive dismissal claims is acting without legal advice. Many employees resign in frustration, believing that the employer’s behaviour automatically entitles them to compensation. Unfortunately, this is not always the case.
A frequent mistake is resigning too quickly without gathering evidence or raising concerns. While it may feel unbearable to stay, the law often expects employees to attempt to resolve the issue internally first, usually through a grievance process. Failing to do so may weaken a claim.
Another common issue is waiting too long. If an employee continues working for months after a breach, the tribunal may decide that the contract was accepted despite the problem. Timing is often decisive.
Employees also sometimes resign without clearly stating the reason. If the resignation letter does not link the decision to the employer’s conduct, it can be harder to prove that the resignation was a direct response to the breach.
Finally, some employees assume that any unfair treatment qualifies. The reality is that the legal threshold is high. A constructive dismissal claim requires strong evidence and a clear legal basis.
What to do if you believe you are being forced to resign
If you feel that your employer’s actions are making your position impossible, it is essential to act carefully and strategically. Constructive dismissal claims must normally be brought to an employment tribunal within three months less one day of the termination of employment, subject to ACAS early conciliation. Missing this deadline usually means losing the right to claim.
Before resigning, you should consider seeking legal advice so you understand your position, your options, and the potential risks. In many cases, a solicitor can help you draft a grievance, assess whether a breach has occurred, and advise on the strength of a potential claim.
At Penerley Solicitors, we help employees understand:
• Whether the employer’s conduct amounts to a legal breach
• Whether resignation is the appropriate step
• The evidence required to support a claim
• The risks and potential compensation
• The correct legal process and deadlines
Every case is different, and there is no guaranteed outcome. However, informed decisions give you the best chance of protecting your rights.
Take action before it is too late
Constructive dismissal is one of the most complex areas of employment law. The decision to resign should never be made without understanding the legal consequences. Acting too quickly, or waiting too long, can remove your right to claim altogether.
If you are experiencing serious workplace issues and feel that you are being forced out of your role, early legal advice can make all the difference.
Contact Penerley Solicitors in Canary Wharf today to arrange a confidential consultation with our employment law team. We will provide clear, honest advice so you can move forward with confidence.
