Resigning from a job in order to bring a claim of constructive dismissal should not be done lightly, yet is the only option in some scenarios. In this article, we set out a checklist for a constructive dismissal resignation letter, which an employee might send to their employer if they are intending to make a claim.
What is constructive dismissal?
‘Constructive dismissal’ is a confusing term because it doesn’t involve an employer directly dismissing an employee at all.
Rather, it is a type of unfair dismissal claim (which can be brought in the employment tribunal) which is triggered by the employee resigning in response to something the employer has (or hasn’t) done in relation to the employment contract. Simply put, constructive dismissal occurs when an employee feels that their employer has acted so badly, that they can no longer feasibly continue to work for them.
The basics of a constructive dismissal resignation letter
It’s essential to get the basics right in a resignation letter. Although it may sound obvious, it’s important that you address your resignation letter to the right person. It may be safest to send a copy of your letter/email to several people to ensure it is seen at the earliest opportunity and doesn’t sit in an in-tray because the addressee is absent.
In most circumstances, your resignation will be sent to your immediate boss. If your employer has an HR department, it’s advisable to also copy them in.
Don’t forget to put the correct date on the letter and make sure it is clear who the letter is coming from. If signing the letter, print your name underneath, in case your signature is hard to read.
Keep a copy of your resignation letter
If you are claiming constructive dismissal, your resignation letter will be an important piece of evidence which will need to be put before the employment tribunal. It is also likely to be one of the documents your solicitor asks to see while advising you on the merits of your claim.
Because of this, it’s imperative that a resigning employee keeps a copy somewhere safe and easily retrievable.
Tone of a constructive dismissal resignation letter
When writing a resignation letter for constructive dismissal, the tone must be clear and business like; stick to the facts and avoid including emotive or impolite language. When an employee resigns in amicable circumstances, they might thank the employer and even go as far as to say they have enjoyed working for them.
When you are resigning to claim constructive dismissal, it is because you feel you can no longer carry on working due to your employer’s behaviour towards you. Therefore, do not include such positive comments in your resignation letter.
Make the date on which you are resigning clear
When an employee believes that they have been constructively dismissed, it is common for them to resign with immediate effect i.e. from the date of their resignation letter. This is because they may feel the situation is so intolerable that they cannot carry on working in that environment a day longer. If this is the case, be clear that this is what you are doing.
Obviously, the consequences of this course of action mean that the employment will terminate straight away, relieving the employer from paying any more salary and pension or providing other benefits. This may be particularly to the individual’s detriment where they are about to be paid a bonus or need to utilise a workplace benefit, such as private medical insurance.
Depending upon the exact nature of the employer’s breach, an employee may feel that although they need to leave, they can manage to work out their notice period.
While working the notice period would not be fatal to bringing a claim of constructive dismissal, the notice worked should not be too long – a matter of weeks rather than months is acceptable. Check your employment contract to see how much notice you are required to give your employer.
If you have delayed resigning, say why
Delaying your resignation can seriously damage your chances of winning your constructive dismissal claim. However, in certain circumstances, some delay may be allowed.
For example, if you were waiting to hear the result of a relevant grievance, or you have been on sick leave and trying to agree reasonable adjustments to get you back to work.
Ideally, in these situations you would have already told your employer that you were reserving your legal right to bring a claim, and/or were working under protest. Regardless of this, if there has been a delay in you tendering your resignation you should explain this and be explicit that this did not amount to an affirmation (acceptance) of the employer’s breach.
Make it clear why you are resigning
If you are resigning in response to a long series of events, you should not necessarily rehearse them in detail in your resignation letter (as this can be done during the course of any subsequent litigation).
Alternatively, you could refer to previous correspondence, such as a grievance letter, which makes it clear what you are relying on as a breach of contract. It’s helpful to use the phrase “constructive dismissal” and refer to the final matter in any chain of events.
If you are resigning in response to a single incident then you may wish to refer to it in summary – again, there is no need for a lot of detail in this letter.
It can be helpful to outline the effect that the employer’s actions (or lack of action) has had on your working life so that it is clear that you feel you have no choice but to resign. However, you should keep this factual and avoid too much emotion.
Deal with any practical matters relevant to you
Your resignation letter is an opportunity to deal with any necessary practical matter. For example, if you are owed salary, expenses or other benefits, request this. You may have belongings at work which you will need to arrange to collect or you may have company property which you need to return.
Any individual matters can be included in the letter and this may be more convenient than writing further communications.
Suggested constructive dismissal resignation letter: drafting ideas
What follows is drafting for a suggested resignation letter. It is intended to be an illustration only. Any actual resignation letter will need to be carefully tailored to fit the particular circumstances of the case. No two cases of constructive dismissal will be exactly the same.
Dear [Name of [HR] Manager]
I am writing to confirm my resignation from the post of . [In accordance with my contract dated X, I am giving you X weeks’ notice so that I expect my last day of employment to be [date]]. OR I am resigning with immediate effect from today’s date. [Please arrange for my final payslip and P45, together with any other relevant materials to be sent to my home address.]
Reason for my resignation
You should be aware that I am resigning in response to a repudiatory breach of contract by my employer and I therefore consider myself constructively dismissed.
[You rejected my grievance on [DATE] which sets out the basis on which I believe you have seriously breached my contract. As you have not upheld my grievance, I now consider that my position at [name of Company] is untenable and my working conditions intolerable, leaving me no option but to resign in response to your breach.]
[As I previously indicated to you that I was working under protest [until my grievance was resolved] I do not in any way believe I have affirmed or waived your breach.]
This article is no substitute for professional advice about your particular circumstances. We would strongly recommend any individual who is considering resigning in order to claim constructive dismissal to take specific legal advice (without delay) before resigning from their employment. While we always strive to ensure our content is as accurate as possible, Springhouse accepts no responsibility for any loss caused as a result of reliance on this article.