Guide to Constructive Dismissal

In this Guide to Constructive Dismissal, Law Centre NI explains key elements of the law relating to a constructive dismissal claim in the Employment Tribunal of Northern Ireland. The information contained in this Guide is correct at the time of writing (July 2026). This Guide is not meant to be a substitute for representation or expert advice.

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Occasionally, an employment relationship ends because an employee feels forced out of their job by their employer’s conduct. This can lead to a legal claim to the Employment Tribunal, known as constructive dismissal.

A claim of constructive dismissal may be made where an employee resigns in response to their employer’s fundamental breach of contract. An employer’s conduct must be sufficiently serious to justify resignation and a claim for constructive dismissal.

An employer’s breach of contract could be one major incident or the last in a series of smaller incidents that are serious when considered together.

The legal definition of constructive dismissal is found in the case Western Excavating v Sharp [1978] ICR 221:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

Who can claim constructive dismissal?

To make a claim for constructive dismissal, you need to meet the following criteria:

You must be an employee, not a worker, contractor or self-employed person. If you’re an employee, you will have a contract of service with your employer and your employer will control how, when, and where you work. Employees usually have set hours, receive holiday pay and are entitled to statutory rights, such as sick pay. You may still be an employee even if you do not have a written contract of employment or if you do not have set hours of work. If you are unsure about your employment status, you should seek advice from an advice agency or Law Centre NI’s Employment Advice Line.
In most cases, you need to have at least one year of continuous employment before you can claim constructive dismissal. There are exceptions to this, including if your claim relates to discrimination or whistleblowing.
There is a time limit to bringing a claim in the Employment Tribunal. You need to submit a claim within 3 months of the termination of your employment. If you have already missed this deadline, it is unlikely your claim will be successful.

What are the conditions for a claim for constructive dismissal?

There are four basic conditions for claiming constructive dismissal. They are:

1. The employer must have breached the contract of employment.

2. The employer’s breach of contract must be sufficiently important to justify the employee resigning, or the last in a series of incidents that justify resignation.

3. The employee resigns in response to the breach of contract and not for some other, unconnected reason.

4. The employee does not delay too long in terminating the contract in response to their employer’s breach. Otherwise, the employee may be taken to have accepted the breach.

For a successful claim of constructive dismissal, you must show that your employer breached your contract of employment. To do this, you need to identify your terms and conditions of employment. Contractual terms and conditions are usually written down in a contract of employment or written statement of particulars of employment. Written contractual terms are easy to identify and understand, and it is usually clear if they have been breached by an employer.

For example, a contract of employment states your rate of pay. If your employer fails to pay you according to this rate, it constitutes a breach of contract.

Some terms of a contract of employment are implied, which means they are not written down. One such implied term is the ‘implied term of mutual trust and confidence’. This implied term means that there is a basic expectation that your employer will treat you with honesty and respect.

Should your employer breach this term, in a fundamental and serious way, it could lead to your resignation and justify a claim for constructive dismissal.

Other terms may not be written down but implied through conduct or custom and practice.

For example, it may not be written down in a contract that employees always have Easter Tuesday off. However, this might constitute an implied contractual term if it is an accepted practice throughout the workplace and everyone relies on it. If the employer decides employees are no longer entitled to Easter Tuesday off, it could constitute a breach of contract.

Secondly, you must show that the breach of contract is sufficiently serious. Only a fundamental breach of contract by an employer, that goes to the root of the contract, is serious enough to justify resignation and a claim for constructive dismissal.

Some examples of serious breaches of contract are:

Regularly not being paid at the agreed, contractual amount without good reason.
Being bullied or discriminated against.
Raising a grievance that your employer refuses to look into.
Making unreasonable changes to working patterns or place of work, without agreement.

Other examples could include:

Rudeness or unpleasantness
Breaches of health and safety
Unfair disciplinary sanction
Serious verbal abuse
A false allegation of serious misconduct.

The Final Straw Principle

Often an employer’s breach of contract does not relate to a one off event, but may be represented in a series of acts. A sufficiently serious breach of contract might consist of a series of small incidents over a period of time. These acts may not amount to a breach of contract in themselves, but, taken together, constitute a breach of contract. This is known as the ‘final straw’ principle.

Anticipatory breaches

An employer’s breach of contract can be an actual or anticipatory. An anticipatory breach is where an employer confirms it is not going to perform a contractual obligation in the future. For example, an employer’s decision not to pay a salary bonus at the end of the financial year, could be an anticipatory breach of contract.

If your employer commits a fundamental breach of a contract of employment and you decide to resign, the timing of resignation is very important.

The reason for this is that an employee can be seen to have ‘waived’ or ‘accepted’ a breach of contract if they do not resign promptly. Waiving/accepting a breach of contract would rule out a constructive dismissal claim.

Delay from the date of contractual breach until the employee finds out about it, will not prevent a claim for constructive dismissal as long as the employee acts promptly once they become aware of the breach.

It is impossible to say how long is too long to wait before resigning and a lot will depend on the circumstances of the case. If an employer says they can no longer pay an agreed level of pay, but an employee decides to continue in employment

anyway, the right to resign and claim constructive dismissal will be lost. The employee cannot pocket the breach for a rainy day.

However, in some limited circumstances where an employee is unable to find alternative work and is reliant on their current employment, they may be able to continue in work for a short period without having affirmed the contract.

What is the relevance of a period of sick leave before resignation?

Often an employee will go on sick leave in response to their employer’s breach of contract. The employee might be off sick for some time and in receipt of sick pay before deciding to resign. How this impacts on a claim for constructive dismissal, will depend on the circumstances of the case.

An Employment Tribunal will take all factors into account before deciding whether the employee has a valid claim for constructive dismissal.

In some cases, an employee may be so seriously ill that it would be unjust and unrealistic to hold that they have waived their employer’s breach of contract by being on sick leave, accepting sick pay and delaying their resignation.

In other cases, the circumstances will be such that a period of sick leave and pay rules out a constructive dismissal claim.

For a constructive dismissal claim, you must resign because of the breach of contract and not for some other reason. For example, If you leave employment because you have been headhunted by another employer or have another job opportunity, you usually cannot claim constructive dismissal.

That is because the reason you are is leaving employment is not because of a breach of contract, but for an ’unconnected reason’.

An employee may still be able to claim constructive dismissal, if their employer’s breach was at least a substantial part, if not the whole reason, behind their resignation.

If an employee is considering making a claim for constructive dismissal, it is important to cite the reason for their resignation in a resignation letter. This will help to address any argument that the resignation was for a reason other than the breach of contract.

Responding to an employer’s breach of contract

If your employer breaches your contract of employment in a serious way, you should not delay in raising the breach with your employer. Continuing to work under the new terms without protesting, risks being interpreted as acceptance of the breach.

You should raise a grievance, outlining why you consider your contract has been breached, stating that you are continuing to work under protest and seeking a resolution.

This gives your employer an opportunity to address your concerns and resolve the situation. That is important because Employment Tribunals often expect employees to try to resolve issues internally before resigning.

In most cases, you should allow sufficient time for the grievance procedure to run its course, including any appeals, as this shows you acted fairly and gave the employer a chance to rectify the issue(s). However, in very serious breaches, you may be justified in resigning immediately and without notice.

Risks and considerations

Before considering a constructive dismissal claim, you should carefully consider the legal, financial, and practical risks involved.

The legal threshold is high. Constructive dismissal requires proof that your employer committed a fundamental breach of contract and that you resigned directly because of the breach. The burden of proof rests entirely with you, and claims often fail where the breach is disputed or considered insufficiently serious.
Timing and conduct are critical. You must resign promptly in response to the breach. Continuing to work for an extended period may be seen as affirming the contract and can undermine the claim. Failing to raise an internal grievance or follow workplace procedures may also weaken your case, unless there is a good reason for not doing so.
There are financial and personal risks. Because a constructive dismissal claim requires resignation, you may face a loss of income and uncertainty, particularly if the claim is unsuccessful or takes time to resolve. Compensation is not guaranteed, and even a successful claim may not fully offset financial losses. The process can also be stressful, time‑consuming, and potentially harmful to future employment prospects or references.

Given these risks, you should carefully document relevant events, consider alternative options such as negotiation or a formal grievance, and seek legal or professional advice before resigning and pursuing a constructive dismissal claim.

Ultimately, any decision to resign must be based primarily on your own health and well-being, with the prospect of a legal claim, a secondary consideration.

Resignation

Should attempts to resolve the matter with your employer fail and you decide to resign, you should act promptly. Undue delay before resignation may indicate acceptance of your employer’s breach and invalidate a claim for constructive dismissal.

In your resignation letter, you should clearly link your decision to resign to your employer’s conduct, making it explicit that your departure is a direct response to the breach of contract.

By resigning promptly, in writing, with clear reference to the breach, and refraining from actions that could imply acceptance, you will strengthen your position before the Employment Tribunal.

Making a claim for constructive dismissal

Before you file an Employment Tribunal claim, you must contact the Labour Relations Agency (LRA) for Early Conciliation.

Early Conciliation is a way of resolving a dispute without having to engage in a lengthy and potentially costly legal battle. It presents an opportunity for you to negotiate settlement terms with your employer. For example, you may be able to negotiate a reference as part of your settlement agreement.

While Early Conciliation is voluntary, you cannot submit a claim to the Employment Tribunal without getting an Early Conciliation certificate from the LRA. Even if you think there is no likelihood of success at Early Conciliation stage, it is important to follow this step.

Early Conciliation is free and confidential. There are two ways you can apply – either by submitting an online form on the LRA’s website or by telephone on 03300 55 22 24.

If Early Conciliation concludes without agreement, the next step is to make a claim to the Employment Tribunal. You must set out your claim in detail and in writing on an ‘ET1 form’. The ET1 form can be sent to the Tribunal via email or by post. A draft form and contact details can be found on the Tribunal website.

Remember, there is a time limit to bringing a claim in the Employment Tribunal. You need to submit your claim within three months of the termination of your employment.

For more information about making a claim to the Employment Tribunal, please see Law Centre NI’s Guide to the Employment Tribunal.

Guide to Constructive Dismissal