What is the Twofold Test for Constructive Dismissal?

There are three types of dismissal which can provide grounds for a claim against an employer: wrongful dismissal, unfair dismissal, and constructive dismissal. Of the three, wrongful dismissal is the most straightforward and arises from your employer’s breach of contract. Unfair dismissal is covered by the Employment Rights Act 1996 which specifies five fair reasons to terminate your employment. If challenged, your employer must prove that at least one of these reasons applies.

Bringing a constructive dismissal claim is more complicated since it involves not the direct action of your employer in dismissing you but your own resignation. Constructive dismissal occurs if the circumstances of your employment, including the behaviour of your employer, line managers or even employees, gives you no realistic choice but to resign.


In order to make any form of legal challenge to a wrongful or unfair dismissal, you must have been employed continuously for at least two years. The same applies to constructive dismissal but no qualifying period is required if the reason for your forced resignation is automatically unfair. An example of this would be unlawful discrimination under any of the categories protected under the Equality Act 2010 including race, sex, disability, and age. The Act replaced previous legislation from the 1970s and 1990s with one unified set of provisions.

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Statutory Protection

The basis of constructive dismissal is established by section 95(1)(c) of the Employment Rights Act 1996 which states that an employee is deemed to have been dismissed if “the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct

In order to bring a successful constructive dismissal claim, the employee must submit conclusive evidence of the behaviour which caused them to resign. An industrial tribunal will judge whether that behaviour was sufficient to justify their resignation. In deciding the case, it will consider the circumstances specific to the individual’s situation and also apply the ‘reasonable person’ test which seeks to provide an objective view as to whether the resignation would seem reasonable to an observer. This can involve complex arguments which makes legal representation advisable. A claimant can contact Employment Law Friend https://www.employmentlawfriend.co.uk/constructive-dismissal or any one of many specialists in employment law for advice.

The Twofold Test

In a claim for constructive dismissal, the burden of proof lies with the employee. There are two elements which the claimant must prove.

Firstly, the claimant must demonstrate that there has been a serious breach of their employment contract.

Secondly, they must show a causal link between the breach and the resignation. If there is evidence that they resigned for some other reason, then the claim is likely to fail.

Serious Breach

This is a fairly broad concept. It includes fundamental breaches of an express contractual term and breaches of implicit terms, such as trust and confidence. Whatever the alleged breach it must be serious enough to justify the employee’s resignation.

What type of behaviour is a tribunal looking for? It could be a single, serious incident or a pattern of behaviour over time. Examples from successful claims include:

– Demotion without fair notice
– Unreasonable changes to working hours or location
– The removal of contractual benefits
– A reduction in pay without agreement
– Working in conditions which breach health and safety laws

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Causal Link

The claimant must establish that the behaviour complained of was directly responsible for their resignation. Significant delay in bringing the claim can be taken as acquiescence, unless an explicit complaint was made at the time