Constructive Dismissal vs Unfair Dismissal: The Difference

Constructive Dismissal vs Unfair Dismissal: The Difference

These two terms are often used interchangeably, but they describe different legal situations.

Unfair Dismissal: The Basics

Unfair dismissal applies where your employer formally terminates your employment and either lacks a fair reason for doing so or fails to follow a fair procedure.

Constructive Dismissal: The Basics

Constructive dismissal applies where you resign, but do so because your employer's conduct left you with no reasonable alternative. The legal test is whether your employer committed a sufficiently serious breach of your employment contract, you did not accept that breach, and you resigned in direct response to it.

What Counts as a Fundamental Breach?

Examples include a serious and sustained reduction in pay without agreement, a significant demotion without justification, persistent bullying or harassment the employer fails to address, forcing you to work in unsafe conditions, and a sustained pattern of behaviour designed to make your position untenable.

The Resignation Timing Problem

If you stay in employment for a significant period after the breach, a tribunal may find that you affirmed the contract and cannot rely on that breach. Once you become aware of a breach, take legal advice promptly before deciding whether to resign. Resigning is irreversible.

This article provides general legal information only. It is not formal legal advice and does not create a solicitor-client or barrister-client relationship. If you need advice specific to your circumstances, please consult a qualified legal professional.