# Constructive dismissal

> **Key takeaway:** Repudiatory breach + resignation in response + no affirmation (Western Excavating). Trust and confidence often key (Malik). Last straw available carefully. = dismissal under ERA s.95(1)(c). Then run fairness/quantum if UD claimed.

- **Jurisdiction:** England & Wales
- **Practice area:** Employment
- **Last reviewed:** 2026-08-04
- **Interactive page:** https://kttclegal.info/library/notes/Employment/constructive-dismissal
- **Keywords:** constructive dismissal, repudiatory breach, trust and confidence, Western Excavating, last straw, resignation, Malik, unfair dismissal

## What is this about?

Constructive dismissal arises where the employee resigns in response to a fundamental breach of contract by the employer. It is a form of dismissal for unfair dismissal and wrongful dismissal analysis, but the employee must prove the breach, causation, and that they did not affirm the contract.

## What is the core rule?

The employee must show: (1) a repudiatory breach by the employer (often of the implied term of mutual trust and confidence — Malik); (2) that they resigned at least partly in response to that breach; and (3) that they did not wait so long as to affirm the contract (Western Excavating v Sharp contractual test). For unfair dismissal, a constructive dismissal is a dismissal (ERA 1996 s.95(1)(c)); fairness is then judged under s.98 if the claim is pursued that way. Last-straw doctrine allows a final minor act to crystallise a series of breaches.

## What are the elements or test?

1. Identify the employer's breach(es) — express or implied (trust and confidence)?
2. Is the breach repudiatory (fundamental)?
3. Resignation in response (need not be sole cause)?
4. Affirmation / delay?
5. Unfair dismissal path: qualifying service; fairness; Polkey; ACAS Code uplift?
6. Wrongful dismissal notice damages alternative/additional?

## Which authorities matter?

- **Western Excavating (ECC) Ltd v Sharp [1978] QB 761** — Contractual test for constructive dismissal — repudiatory breach, not mere unreasonableness.
- **Mahmud v BCCI (Malik) [1998] AC 20** — Implied term of mutual trust and confidence frequently founded in constructive dismissal claims.
- **London Borough of Waltham Forest v Omilaju [2004] EWCA Civ 1493, [2005] ICR 481** — Last straw must contribute to the series, though it need not be a breach itself if the series amounts to repudiation — apply carefully with later authorities.
- **Employment Rights Act 1996, s.95(1)(c)** — Statutory definition treating resignation in response to breach as dismissal.

## How does this apply in practice?

Grievance processes may be relevant to affirmation and reasonableness but do not replace the contractual test. Discrimination-related resignations may found additional EqA claims. Keep unfair dismissal and wrongful dismissal remedies distinct.

## What are common pitfalls?

- Pleading unfairness without a true repudiatory breach
- Delay after the breach amounting to affirmation
- Resigning before the breach is clear or documented
- Missing qualifying period for ordinary unfair dismissal

## When would a practitioner use this?

Resignation risk advice, grievance strategy, and tribunal constructive unfair dismissal claims.

## Quick reference

Repudiatory breach + resignation in response + no affirmation (Western Excavating). Trust and confidence often key (Malik). Last straw available carefully. = dismissal under ERA s.95(1)(c). Then run fairness/quantum if UD claimed.

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*Reference material from [KTTC Legal](https://kttclegal.info/), not legal advice. Work product supports instructing solicitors and barristers under their supervision. England & Wales.*