In a nutshell, when someone is constructively dismissed from their employment, they may be able to claim unfair dismissal (which is a statutory right set out in legislation). However, they will need to meet the various eligibility requirements for bringing an unfair dismissal claim. If they do not satisfy these requirements then they may still be able to bring a claim based on breach of contract (wrongful dismissal).
What is constructive dismissal?
A constructive dismissal occurs, confusingly, when an individual resigns, as opposed to being expressly dismissed by their employer. Not all resignations will be a constructive dismissal. In order for there to be a constructive dismissal, the individual must resign without delay in response to a fundamental (i.e. serious rather than trivial) breach of contract by the employer.
The employer’s behaviour which leads the individual to resign must be more than just unreasonable; it must be so serious that it goes to the very heart of the employment relationship so that the individual feels they can no longer carry on as an employee. Examples include: failing to pay salary, forced demotions, undermining an individual in front of colleagues/customers, failing to deal with bullying or harassment, unreasonable changes to shift patterns, failing to deal with a grievance in a timely manner.
The employer’s breach of contract may be just one serious incident or, it may be a series of smaller incidents which together add up to a serious breach (the last straw principle).
Relationship with unfair and wrongful dismissal
While a constructive dismissal is an eligible type of dismissal for an unfair dismissal claim, an employee wanting to bring an unfair dismissal claim in the employment tribunal will only be able to do so where they satisfy all the eligibility requirements for such a claim. Importantly, this includes being employed for at least two years.
A constructive dismissal will also be a wrongful dismissal if the employee resigns with immediate effect as they will not have received any notice or pay from their employer.