🇬🇧 UK · Employment Law · Updated 2026-06-27
Constructive dismissal vs unfair dismissal: what's the difference?
Both constructive dismissal and unfair dismissal are types of claim you can bring in the Employment Tribunal, and both require 2 years' continuous employment (unless automatically unfair). The fundamental difference is who ends the employment: in constructive dismissal, you resign; in unfair dismissal, your employer fires you. The legal tests, burden of proof, and risks involved are very different.
Key differences at a glance
| Aspect | Constructive dismissal | Unfair dismissal |
|---|---|---|
| Who ends the employment | You resign — because your employer's conduct left you no reasonable alternative | Your employer fires you |
| Legal basis | ERA 1996 s.95(1)(c) — employee terminates with or without notice in response to employer's repudiatory breach of contract | ERA 1996 s.98 — employer dismisses without a fair reason or without a fair process |
| Qualifying period | 2 years (unless automatically unfair ground applies) | 2 years (unless automatically unfair ground applies) |
| Burden of proof | Employee must prove: (1) fundamental breach of contract, (2) resignation was caused by the breach, (3) they did not affirm the breach by continuing too long | Employer must show a potentially fair reason; tribunal then assesses fairness of reason and procedure |
| Risk to employee | High — if the tribunal finds the breach was not fundamental, or you affirmed it, you lose and receive nothing. You also lose your job voluntarily. | Lower — employer must justify the dismissal; employee does not need to establish a breach |
| What triggers it | Fundamental breach of contract: pay cuts, demotion, bullying, hostile working environment, removing duties, changing location unreasonably | Employer dismisses for no good reason, unfair reason, or without following a fair process (even if reason was potentially fair) |
| Notice on resignation | Can resign with or without notice — either can found a constructive dismissal claim. Resigning without notice does not amount to misconduct if the breach was serious enough. | Employer must give notice (or PILON) unless gross misconduct justifies summary dismissal |
| Compensation | Same as unfair dismissal: basic award + compensatory award up to £115,115 or 52 weeks' pay | Basic award + compensatory award up to £115,115 or 52 weeks' pay |
The bottom line
Constructive dismissal claims are harder to win than unfair dismissal claims — you carry the burden of proving your employer committed a fundamental breach, and any delay in resigning risks being taken as 'affirming' the breach. Always take legal advice before resigning with a view to claiming constructive dismissal. If your employer has fired you and the reason or process was unfair, an unfair dismissal claim is usually more straightforward.
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Calculate →Frequently asked questions
Do I need to resign to claim constructive dismissal?
Yes. Constructive dismissal by definition requires you to resign. You must treat the contract as repudiated by your employer (i.e. resign) before you can bring the claim. If you continue working for too long after the breach, you risk being found to have 'affirmed' the contract — meaning you accepted the breach — which ends your ability to claim.
Does constructive dismissal always involve bullying?
No. Constructive dismissal can arise from any fundamental breach of the employment contract — the most common are: unjustified pay cuts, demotion, changes to location or working hours without contractual right, removal of duties or responsibilities (making the role untenable), and sustained failure to support an employee against workplace bullying. A single serious breach or a course of cumulative conduct can both found a claim.
What is the 'last straw' doctrine in constructive dismissal?
The last straw doctrine allows an employee to rely on a series of acts by the employer, none of which individually amounted to a fundamental breach, where the final act (the 'last straw') tips the balance. The last straw itself does not need to be a fundamental breach — it just needs to contribute to the breach of the implied term of trust and confidence. The final act must not be entirely innocuous.
What is the implied term of trust and confidence?
Every employment contract contains an implied term that the employer will not, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Malik v BCCI [1997] UKHL 23). Breach of this implied term — typically through serious or sustained misconduct by the employer — is the most commonly relied upon ground for constructive dismissal.
Can I bring an unfair dismissal claim if I resigned?
Yes — if your resignation qualifies as a constructive dismissal. Under ERA 1996 s.95(1)(c), a resignation in response to a fundamental breach by the employer is treated as a dismissal for unfair dismissal purposes. You are not claiming 'unfair dismissal' in the sense of being fired — you are claiming that the constructive dismissal was also unfair, which follows almost automatically once the constructive dismissal is established.