Must an employee have been employed for a particular period of time before he or she can claim constructive dismissal?
As a general rule, an employee must have been employed for at least two years before he or she can claim unfair constructive dismissal.
A constructive dismissal falls within the definition of dismissal contained in s.95(1) of the Employment Rights Act 1996 and is defined as arising where "the employee terminates the contract under which he [or she] is employed (with or without notice) in circumstances in which he [or she] is entitled to terminate it without notice by reason of the employer's conduct". This means that the statutory provisions relating to unfair dismissal apply equally to cases of constructive dismissal. Under s.108 of the Employment Rights Act 1996, the right not to be unfairly dismissed does not generally apply to an employee unless he or she has been continuously employed by the employer for a period of not less than two years ending with the effective date of termination of employment.
However, there are a number of important exceptions to this rule. No qualifying period of employment is needed where the reason for the constructive dismissal is one of the 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.