This guide is maintained as a current resource for July 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Authoritative guide to constructive dismissal caused by workplace discrimination in England and Wales. Explains how discriminatory conduct can lead to constructive dismissal, the legal tests under the Employment Rights Act 1996 and Equality Act 2010, tribunal procedures and time limits, and potential compensation for employees.
Constructive dismissal and workplace discrimination are significant concepts in UK employment law. When an employee resigns because of serious breaches of contract by their employer, the law may treat this as a constructive dismissal - effectively a dismissal imposed by the employer's conduct. When discriminatory treatment is part of the workplace conduct, it can form the basis of both a constructive dismissal claim and a discrimination claim under the Equality Act 2010. This article explains how constructive dismissal and discrimination intersect, the legal framework that applies, how claims are pursued in an employment tribunal, relevant time limits, and practical considerations for employees and employers. The explanations are grounded in authoritative sources and legal principles applicable in England and Wales.
Understanding Constructive Dismissal
Constructive dismissal arises when an employee resigns because their employer has seriously breached an implied or express term of the employment contract, making it unreasonable to continue working. The employee treats themselves as dismissed by their employer, even though they have resigned.
The breach may occur through a single serious incident or a series of actions that cumulatively undermine the employment relationship. Examples include persistent bullying, harassment, unjustified pay cuts, or significant unilateral changes to job duties.
To bring a constructive dismissal claim, an employee generally must have the legal status of an “employee” and at least two years' continuous service. However, if the resignation occurs due to discrimination, pregnancy/maternity issues, whistleblowing, or other automatically unfair dismissal reasons, the service requirement does not apply.
Workplace Discrimination: Legal Framework
Discrimination in the workplace is unlawful under the Equality Act 2010. The Act protects employees and job applicants from unfavourable treatment linked to protected characteristics, including age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.
The Act makes it unlawful for an employer to discriminate against an employee in terms and conditions, dismissal, or by subjecting them to any detriment. The definition of “dismissal” expressly includes constructive dismissal, recognising that resignations forced by unlawful conduct can constitute discriminatory treatment.
Discrimination claims can arise from direct discriminatory acts, indirect discrimination (neutral practices that disproportionately disadvantage a protected group), harassment (unwanted conduct linked to a protected characteristic), and victimisation (detriment because of a discrimination complaint).
Constructive Dismissal Caused by Discriminatory Conduct
Where the conduct that leads to constructive dismissal includes discriminatory behaviour, the employee may bring both a constructive dismissal claim (as a form of unfair dismissal) and a discrimination claim under the Equality Act 2010. Constructive dismissal often overlaps with discrimination claims when the employer's conduct involves harassment, victimisation, or other discriminatory treatment.
In practice, this may occur when discriminatory conduct is part of the pattern of behaviour that breaks the contractual relationship. For example, if an employee faces racial comments, sexist remarks, or disability‑related stigma that creates an intolerable work environment, they may resign and pursue constructive dismissal and discrimination claims.
Tribunal and appellate authorities have addressed the intersection of constructive dismissal and discrimination. Recent decisions confirm that, depending on the facts, discriminatory harassment that forms part of the employer's conduct could ground both a claim for constructive dismissal and a discrimination claim. In some cases, tribunals and the Employment Appeal Tribunal (EAT) have allowed discrimination claims to proceed alongside constructive dismissal, even where discriminatory conduct is not the final “last straw” event.
The legal landscape on whether constructive dismissal itself can be treated as harassment under specific Equality Act provisions has developed through case law. In certain circumstances, appellate decisions have held that constructive dismissal can be part of an act of unlawful harassment, emphasising that statutory protections should reflect the purpose of eliminating discrimination.
Employment Tribunal Claims: Procedures and Time Limits
Early Conciliation
Before presenting a claim to an employment tribunal, employees must notify Acas and engage in early conciliation. This process aims to resolve disputes without formal litigation. A certificate from Acas is required when submitting tribunal claims, including constructive dismissal and discrimination claims.
Time Limits
Tribunal claims must generally be presented within three months less one day from the effective date of the resignation or the discriminatory act. If multiple discriminatory acts extend over time, the tribunal may consider the pattern of behaviour for timeliness and substance.
Qualifying Service
Constructive dismissal claims usually require the two‑year qualifying period, but discrimination and automatically unfair dismissal elements (e.g., discrimination related to a protected characteristic) are not subject to this minimum.
Remedies and Compensation
If successful, a claim based on constructive dismissal will typically attract compensation for loss of earnings and statutory awards appropriate to unfair dismissal. Compensation amounts for constructive dismissal alone are subject to statutory limits unless overlapping with discriminatory elements that are independently compensable.
In discrimination claims, remedies include unlimited compensation for financial loss and injury to feelings. The tribunal assesses injury to feelings using established guidelines, and aggravated damages may also be considered where conduct was particularly egregious.
Awards may include interest, tribunal fees reimbursement (if applicable), and sometimes orders for reinstatement or re‑engagement though the latter are less common in practice.
Practical Considerations
Documenting the Breach
Employees considering resignation and a constructive dismissal claim should clearly document the employer's conduct, including discriminatory incidents, dates, and impact. Resignation letters should articulate the reasons for leaving and link them to breaches of contract and discriminatory treatment.
Grievances and Internal Procedures
Before resigning, employees are usually advised to raise formal grievances internally, which can provide a record of complaints and the employer's response. This can strengthen tribunal claims.
Legal Advice
Constructive dismissal claims are high‑risk due to the requirement to resign and prove a fundamental breach. Employees should seek professional advice, whether through trade unions, legal advisers, or specialist support services.
Summary
Constructive dismissal caused by discriminatory conduct arises when an employee resigns because behaviour by the employer breaches the employment contract and includes unlawful discrimination. Under the Employment Rights Act 1996 and the Equality Act 2010, such resignation may give rise to both constructive dismissal and discrimination claims in an employment tribunal. The procedural requirements include early conciliation and strict time limits. Remedies differ between unfair dismissal and discrimination claims, with discrimination claims capable of unlimited awards. Clear documentation, formal grievances, and professional advice are crucial in navigating these complex legal processes.
