1. What is Unfair Dismissal?
Unfair dismissal is when your employer terminates your contract of employment without a fair reason or without following a fair procedure. To be protected, you usually need at least two years of continuous employment.
The Two-Year Rule and Its Exceptions
Important exceptions exist where a dismissal is "automatically unfair" regardless of how long you have been employed, including dismissal for:
- Asserting a statutory right (e.g., asking to be paid the National Minimum Wage)
- Making a whistleblowing disclosure
- Reasons relating to pregnancy, maternity leave, or other family-friendly rights
- Taking part in trade union activities
The Legal Test for Fair Dismissal
For a dismissal to be fair, an employer must satisfy two key tests:
- Test 1 — A fair reason: There are only five potentially fair reasons: Conduct, Capability, Redundancy, Statutory Restriction, or Some Other Substantial Reason (SOSR).
- Test 2 — A fair process: Even with a fair reason, the employer must properly investigate, inform you of the allegations, hold a formal hearing where you can state your case, allow you to be accompanied, and provide a written outcome with the right to appeal.
If your employer fails on either test, your dismissal is likely to be unfair.
2. What is Constructive Dismissal?
Constructive dismissal is a specific type of unfair dismissal where you are forced to resign in response to a serious breach of your employment contract by your employer. Even though you resigned, the law treats it as a dismissal.
The Legal Test for Constructive Dismissal
You must prove four things:
- A Fundamental Breach: Your employer committed a very serious breach of your contract — most often a breach of the "implied term of trust and confidence."
- You Resigned Because of It: The breach must be the reason, or at least one of the main reasons, for your resignation.
- You Did Not "Affirm" the Breach: You must not have waited too long after the breach without formally objecting. Staying for weeks or months may be seen as having accepted the new situation.
- You Resigned: You must actually have resigned — not been dismissed.
Common Examples of a Fundamental Breach
- Unilaterally cutting your pay or changing your role without your agreement
- Subjecting you to bullying and harassment and failing to take action when you report it
- Making unreasonable demands or creating an intolerable work environment
- Serious breaches of trust, such as falsely accusing you of misconduct
Strategic tip: Before you resign to claim constructive dismissal, it is almost always necessary to have first raised a formal grievance. This proves you gave your employer an opportunity to fix the breach. Their failure to do so becomes part of your evidence.
3. What to Do Next
- Raise a formal grievance first: Use the Grievance Survival Toolkit
- Explore negotiating your exit: Read our guide on Settlement Agreements
- Prepare a tribunal claim: Follow the Employment Tribunal Toolkit