In some circumstances, this type of situation could also give rise to a claim for constructive unfair dismissal in the employment tribunal.
In most cases, an employee will only be eligible to pursue this type of claim after 2 years’ continuous service, however there are some limited exceptions where an employee may be able to pursue a claim even if they do not have the qualifying service period.
Claiming constructive unfair dismissal
In order to succeed in a claim for constructive unfair dismissal, an employment tribunal will need to be convinced that the employer has breached the contract in such a serious way that the employee was left with no alternative but to resign.
It is not enough to simply show that the employer behaved unreasonably, the employee must prove that the employer has done something sufficiently serious to justify the employee’s decision to resign.
An employment tribunal will also need to be convinced that the resignation was in response to that breach of contract. The decision to resign can be in response to a single event, or a series of minor incidents, the last of which has prompted the employee to resign (this is known as the “last straw” principle).
Employment tribunals and constructive unfair dismissal
In considering a claim for constructive unfair dismissal, an employment tribunal will take into account various factors, including delay.
Any significant delay between the alleged breach and the decision to resign would give an employer the opportunity to argue that the decision to resign was not in response to the alleged breach.
It could also allow the employer to argue that the employee has accepted the breach and affirmed the contract.
Although resigning with notice will not automatically defeat a claim for constructive dismissal, it is likely to undermine the suggestion that the employee could not continue working for the employer.
In most cases, any action in the employment tribunal should be commenced within three months less a day of employment ending.
Seek legal advice for a constructive unfair dismissal claim
Therefore, if you have resigned from your employment and would like to explore the possibility of pursuing a claim (whether or not you have 2 years’ service), or if you simply have concerns about problems at work, we recommend that you seek legal advice as soon as possible.
An employee should only resign from their employment if they consider that this is genuinely the best option for them and we would always recommend seeking advice at an early stage to explore the options for resolving a dispute.
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