Constructive dismissal

Produced by Tolley in association with

Employment Tax

Guidance

A constructive dismissal will occur in a situation where the employee resigns because a sufficiently serious breach of the contract by the employer entitles them to leave without giving notice. The employee may bring a claim for unfair dismissal (if they have the requisite length of service) even though they chose to end the contract by resigning. The resignation is considered a dismissal because it occurred in circumstances in which the employer's breach of contract made it almost impossible for the employee to stay at work. Western Excavating (ECC) Ltd v Sharp [1978] 1 All ER 713

Employer’s conduct

The employer's breach of contract must be very serious. It must be shown that the employer has breached a fundamental express or implied term of the employee's contract. It is not sufficient that the employer has behaved unreasonably; the behaviour must be so serious that the employee is justified in resigning.

Employees will often allege a breach of the implied term of trust and confidence, which is a fundamental term of every contract.

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Hannah Freeman

Barrister at Old Square Chambers , OMB, Employment Tax

Hannah is an experienced employment law specialist advising on all forms of discrimination, maternity and paternity rights, unfair dismissal, contractual disputes, part-time working and TUPE. Hannah acts for claimants and respondents in both the public and private sectors, including the NHS, the police, local authorities, educational institutions, financial services and the hospitality industry, as well as providing training and support to in-house legal and HR teams.

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