Blog
Do you need two years’ service for constructive dismissal?
Published 08 April 2026
Many of us, at one time or another, are likely to have questioned whether we want to continue in the job we’re doing - but what happens if you’re forced to quit against your will?
It is called constructive dismissal, and it is something you may have heard about, heard others talk about, or be unclear about.
It can be a contentious and controversial way to leave any job role, and it can sit in an awkward space between resignation and dismissal.
Because of this, the rules around constructive dismissal can be confusing for both employers and employees.
An employee may be able to bring a constructive dismissal claim if they resign because they believe their employer has seriously breached the terms of their employment contract
A claim can arise from one major incident or from a build‑up of smaller issues that, over time, become impossible to tolerate.
The question of who can claim constructive dismissal, and whether you need two years’ service to do so, is one of the most common points of confusion.
In recent weeks, in this space, we’ve looked at the employment law changes being introduced under the Employment Rights Act 2025 (ERA), so it’s a good time to look at what impact this may also have on the rules on constructive dismissal (1) [cited 8.4.26]
Here, we take a closer look at constructive dismissal.
What is constructive dismissal?
Constructive dismissal happens when an employee resigns because their employer has behaved so badly that continuing in the job becomes impossible.
ACAS explain that an employee can make a constructive dismissal claim if they resign because they think their employer has seriously breached their employment contract (2) [cited 8.4.26]
Examples could include:
- Regularly not being paid the agreed amount without a good reason.
- Being bullied or discriminated against.
- Raising a grievance that the employer refuses to look into.
- Making unreasonable changes to working patterns or place of work without agreement.
It could be because of one serious incident or a series of things.
If the situation is serious enough, the law treats the resignation as if the employer actually dismissed the employee.
ACAS do warn that resigning is a big step to take, and that a constructive dismissal claim can be difficult to win at an employment tribunal.
Just one example of a successful claim is in the case of Mr Parbhjot Singh v Metroline West Limited, in which the employee went off sick after being called to a disciplinary meeting. Although occupational health didn’t question his illness, the employer believed he was avoiding the process and only paid statutory sick pay instead of his contractual entitlement.
He claimed constructive dismissal. The tribunal accepted there was a breach of contract but said it wasn’t serious enough to be repudiatory. The Employment Appeal Tribunal disagreed, finding that failing to pay contractual sick pay could amount to a fundamental breach regardless of the employer’s intentions (3) [cited 8.4.26]
Is it like unfair dismissal and you need two years’ service or more?
Yes, you do currently need two years’ service to be able to make a claim for constructive dismissal.
It is a requirement that comes from the Employment Rights Act 1996, which set the qualifying period for unfair dismissal claims (4) [cited 8.4.26]
But, and as with many things, there are exceptions.
When do you not need two years’ service
Similar to unfair dismissal there are some situations where the two‑year rule does not apply.
- Automatically unfair reasons
If the constructive dismissal is because of an automatically unfair reason, the employee does not need two years’ service.
Automatically unfair reasons include:
- Whistleblowing.
- Health and safety concerns.
- Trade union membership or activities.
- Asserting a statutory right (e.g., refusing to work over 48 hours without consent).
- Being selected for redundancy for an unlawful reason.
- Taking family‑related leave (maternity, paternity, adoption, shared parental leave).
In these cases, an employee could potentially make a claim from their first day of service.
- Discrimination claims
If the forced resignation is as a direct result of a protected characteristic and discrimination under the Equality Act 2010, the two‑year rule does not apply (5) [cited 8.4.26].
Protected characteristics include:
- Age.
- Disability.
- Gender reassignment.
- Marriage and civil partnership.
- Pregnancy and maternity.
- Race.
- Religion or belief.
- Sex.
- Sexual orientation.
A discrimination claim can be made without any minimum service requirement.
- Breach of contract claims
An employee with a short length of service, at present, cannot make an unfair dismissal claim, but they can still make a wrongful dismissal claim (breach of contract). This does not require two years’ service.
Wrongful dismissal happens when an employer ends someone’s employment in a manner that breaches the terms of their contract. It is different to unfair dismissal because it doesn’t look at whether the employer acted reasonably. The only question is whether the contract was breached and what financial loss the employee suffered as a result.
Compensation is limited to notice pay and related losses and not the wider compensation that can be awarded in unfair dismissal cases.
Will the ERA 2025 change the two‑year rule?
The ERA, described by the Prime Minister, Sir Keir Starmer, as “the biggest upgrade to workers’ rights in a generation”, has already introduced several reforms and will bring in further changes aimed at modernising employment law (6) [cited 8.4.26]
However, the published information on the ERA does not specifically refer to any change about constructive dismissal itself. We could find no available sources that mentioned changes to the legal test for constructive dismissal.
But the ERA does make significant changes to the law on unfair dismissal - from 1 January 2027, the qualifying period to claim ordinary unfair dismissal will drop from two years to six months - and because constructive dismissal claims are legally treated as a form of unfair dismissal, those changes are likely to indirectly affect constructive dismissal claims.
One thing that should not change, is that if an employee is considering making a constructive dismissal claim they should always seek expert legal advice before resigning.
Tips for employees thinking about a constructive dismissal claim
If you think you’re being pushed out or treated unfairly:
- Document everything
Evidence is key, so keep emails, messages, meeting notes and witness statements. - Raise a grievance
Submitting a formal grievance will show that you took reasonable steps to resolve the matter internally (7) [cited 8.4.26] . - Get legal advice early
Constructive dismissal claims are complex and time‑sensitive. - Don’t resign impulsively
Once you resign, you lose leverage and options.
Tips for Employers
To cut the risk of a constructive dismissal claim:
- Have clear policies in place and adhere to them.
- Train managers on fair treatment and communication.
- Take grievances seriously and investigate complaints properly.
- Avoid knee‑jerk disciplinary action.
- Keep accurate records of decisions and conversations.
FAQs
Can I claim constructive dismissal with less than two years’ service?
Generally, you cannot claim constructive dismissal with short service. But from day one of your employment you can make a claim if you’re forced to resign because of a protected characteristic (discrimination), whistleblowing or other automatically unfair reasons.
Is constructive dismissal hard to prove?
Yes, it is difficult to prove. This is because the burden is on the employee to show a serious breach of contract and that there was no other option but to resign.
Do I need to raise a grievance first?
It’s a good idea to so even if it is not legally required, as tribunals expect it unless the situation is extreme.
Will the ERA remove the two‑year rule?
There is no clear plan to remove it, and if you’re thinking of resigning and making a claim seek expert legal advice first.
Can I claim breach of contract instead?
Yes. Wrongful dismissal claims do not require two years’ service, but compensation is limited.
Finally
Finding yourself in a situation where you’re seriously considering constructive dismissal is never comfortable. The most important step is to fully understand your circumstances and seek the right expert advice before making any decisions. Take your time, assess your options carefully and avoid acting impulsively.
And for employers, the focus should be on fair treatment, clear communication and early resolution of workplace issues.
Constructive dismissal is never simple, but with the right information and a clear understanding of your rights, you can navigate it with confidence.
