Constructive Dismissal in Scotland: When Leaving Your Job May Still Count as Dismissal

Leaving your job is normally seen as a personal decision. However, in some situations, employees feel forced to resign because of the way they have been treated at work. In these cases, the law may view your resignation differently.

This is known as constructive dismissal. It happens when an employer’s actions seriously damage the employment relationship, leaving the employee with little realistic choice but to leave.

This guide explains what constructive dismissal means in Scotland, when it may apply, what steps to take before resigning, and how it connects to grievance procedures, disciplinary processes, and unfair dismissal claims.

What is Constructive Dismissal?

Constructive dismissal happens when an employee resigns because their employer has fundamentally breached their contract of employment.

In simple terms, this means:

Your employer has done something seriously wrong
The situation becomes unacceptable
You feel forced to resign as a result

Even though you technically resign, the law may treat this as a form of dismissal.

Constructive dismissal claims are usually brought as part of an unfair dismissal claim. You can read more about this in our guide to Unfair Dismissal in Scotland.

Common Examples of Constructive Dismissal

Every case depends on its facts, but common examples include:

Serious bullying or harassment that is not addressed
Sudden and unreasonable changes to your role or responsibilities
Failure to pay wages or agreed benefits
Unsafe working conditions
Being disciplined unfairly or without proper procedure
Being ignored after raising serious workplace concerns
Breaches of trust or confidence by your employer

Sometimes the issue develops gradually rather than happening in one single incident. A pattern of poor treatment over time can still amount to constructive dismissal.

The Importance of a Serious Breach

Not every workplace disagreement will qualify as constructive dismissal.

For a claim to succeed, there usually needs to be a fundamental breach of contract. This means the employer’s behaviour must be serious enough to undermine trust and confidence between employer and employee.

Examples of fundamental breaches may include:

Repeated failure to follow fair disciplinary procedures
Ignoring formal grievances
Allowing ongoing harassment
Changing contract terms without agreement

If the issue is minor or temporary, it may not meet the legal threshold.

Should You Raise a Grievance Before Resigning?

In many constructive dismissal situations, raising a grievance first is extremely important.

A grievance gives your employer the opportunity to fix the problem. If you resign without giving them that chance, it may weaken your position later.

A grievance also creates a written record showing:

What the problem was
When you raised it
How your employer responded

You can read more about this in our guide to How the Grievance Procedure Works in Scotland.

The Role of the ACAS Code of Practice

Employers in Scotland are expected to follow the ACAS Code of Practice on disciplinary and grievance procedures when dealing with workplace concerns.

If your employer ignores the Code — for example, by failing to investigate your grievance or refusing to allow an appeal — this may strengthen your position.

Failing to follow the ACAS Code can also affect compensation levels in tribunal claims.

You can read more about this in our guide to The ACAS Code of Practice Explained.

What Steps Should You Take Before Resigning?

Resigning is a serious step, especially if you are considering a constructive dismissal claim. Acting too quickly can sometimes make the situation harder to resolve.

Before resigning, it is usually wise to:

Keep written records of incidents
Save relevant emails or messages
Raise a formal grievance where appropriate
Give your employer a chance to respond
Seek advice about your situation
Consider whether an appeal process is available

If your grievance is rejected, you may be able to appeal the outcome. You can read more in our guide to How to Appeal a Disciplinary or Grievance Outcome (Scotland).

How Quickly Must You Resign?

Timing matters in constructive dismissal cases.

If you continue working for a long period after the issue occurs, it may suggest that you accepted the situation. This can weaken a claim.

That does not mean you must resign immediately, but you should act without unnecessary delay once the situation becomes intolerable.

Each case depends on its specific facts.

Constructive Dismissal and Employment Tribunals

Most constructive dismissal cases are decided by employment tribunals.

If you believe you have been constructively dismissed, you will usually need to:

Notify ACAS and start early conciliation
Attempt to resolve the dispute
Submit a tribunal claim if settlement is not reached

In most cases, you must start the ACAS process within:

Three months minus one day from the date your employment ended.

Missing this deadline can prevent your claim from being heard.

Evidence That May Support a Claim

Strong evidence can make a significant difference in constructive dismissal cases.

Useful evidence may include:

Copies of grievances
Emails or written instructions
Witness statements
Medical records where stress or illness is involved
Notes taken during meetings
Disciplinary or grievance paperwork

Keeping accurate records throughout the process is extremely valuable.

Constructive Dismissal vs Unfair Dismissal

Constructive dismissal is closely linked to unfair dismissal, but they are not identical.

Unfair dismissal usually involves:

The employer dismissing the employee directly

Constructive dismissal usually involves:

The employee resigning because the employer’s behaviour forced them to leave

Many constructive dismissal claims are ultimately assessed as unfair dismissal claims.

You can read more in our guide to Unfair Dismissal in Scotland.

Practical Tips If You Are Considering Resigning

If you believe you may be facing constructive dismissal, consider the following:

Do not resign in anger without thinking carefully
Keep written records of events
Follow internal procedures where possible
Use grievance and appeal processes properly
Seek guidance before making major decisions

Taking time to consider your options can protect your position.

How Ark Advocacy Can Help

Workplace disputes that lead to constructive dismissal situations are often complex and emotionally challenging.

Support can be particularly valuable if:

Your grievance has been ignored
Disciplinary action feels unfair
Workplace relationships have broken down
You feel forced to consider resignation

Ark Advocacy supports employees across Scotland with:

Preparing grievances
Reviewing disciplinary outcomes
Preparing for appeal hearings
Understanding workplace procedures
Attending meetings where appropriate

Early support can make a significant difference in how a situation develops.

FAQ

What is constructive dismissal in Scotland?

Constructive dismissal happens when you resign because your employer has seriously breached your contract, leaving you with little realistic choice but to leave.

Do I have to raise a grievance before resigning?

In many cases, yes. Raising a grievance shows that you gave your employer the chance to resolve the issue and creates a formal record of your concerns.

How long do I have to make a constructive dismissal claim?

In most cases, you must notify ACAS within three months minus one day of leaving your job.

Can poor disciplinary handling lead to constructive dismissal?

Yes. If disciplinary or grievance procedures are handled unfairly or in breach of the ACAS Code, this may contribute to a constructive dismissal situation.

You may find our guide to Facing a Disciplinary Hearing in Scotland helpful.

What if I resign without raising a grievance?

You may still have a claim, but it can be harder to prove constructive dismissal without evidence that your employer had an opportunity to fix the problem.

Disclaimer: This article provides general information only and does not constitute legal advice. Employment situations are fact-specific, and strict time limits may apply.

Constructive Dismissal in Scotland - When Leaving Your Job May Still Count as Dismissal