Constructive dismissal
Produced in partnership with Keith Bryant QC of Outer Temple Chambers
Constructive dismissal

The following Employment practice note produced in partnership with Keith Bryant QC of Outer Temple Chambers provides comprehensive and up to date legal information covering:

  • Constructive dismissal
  • Employer's conduct
  • Breach of contract by employer
  • Fundamental breach
  • Health and safety cases
  • Trust and confidence cases
  • The last straw doctrine
  • Resignation in response to the breach
  • Resignation
  • In response to the breach
  • More...

Constructive dismissal

Dismissal of an employee by their employer will typically be at the instigation of the employer. In other words, the employer will terminate the contract of employment by their words or actions. That will amount to what is usually called an express dismissal.

There may be circumstances, however, where the employer does not terminate the contract but behaves in such a way as to entitle the employee to resign and to claim that they have effectively been dismissed as a result of the employer’s bad conduct. A resignation in such circumstances may amount to a constructive dismissal.

There are three essential requirements for a constructive dismissal:

  1. there must be an actual or anticipatory breach of contract by the employer which is a fundamental or repudiatory breach, ie one that goes to the root of the contract so as to be sufficiently serious to justify the employee's resignation

  2. the employee must resign in response to the breach, rather than for some other reason

  3. the employee must not delay too long in terminating the contract in response to the employer's breach, otherwise the employee may be regarded as having elected to affirm the contract and the right to accept the employer’s breach would be lost

Note that unreasonable behaviour by an employer will not of itself be enough to allow an employee to resign and claim to have

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