As a general rule, an employee must have been employed for the required qualifying period before they can claim unfair constructive dismissal. The continuous service required is two years where the effective date of termination is before 1 January 2027 and six months for constructive dismissals on or after that date.
A constructive dismissal occurs where the employee resigns, with or without notice, in response to a serious breach of contract by the employer. This falls within the definition of dismissal under s.95 of the Employment Rights Act 1996. The qualifying conditions for claiming unfair dismissal apply equally to cases of constructive dismissal.
However, there are a number of important exceptions to the qualifying service rule. No qualifying period of employment is needed where the reason for the constructive dismissal is one of the automatically unfair reasons set out in s.108(3) of the Employment Rights Act 1996. These include (but are not limited to) where the employee was forced to resign as a result of the employer's conduct for a reason related to: pregnancy, childbirth or maternity leave; health and safety; the assertion of a right under the Working Time Regulations 1998 (SI 1998/1833); the making of a protected disclosure; and the assertion of a right under the National Minimum Wage Act 1998.
