Constructive dismissal claim struck out for lack of two years' service
A former employee's constructive unfair dismissal claim against Deloitte LLP was struck out because he had less than two years' service. His attempt to argue automatic unfair dismissal under health and safety grounds came too late.
1 min read · Last updated 18 May 2026
Key facts
- The claimant was employed from 1 June 2015 to 6 May 2016.
- The claimant resigned and claimed constructive unfair dismissal.
- The claimant lacked two years' qualifying service for an ordinary unfair dismissal claim.
- The claimant did not raise a claim under s.100 ERA 1996 in his claim form or at the hearing.
- The claimant's application for reconsideration was refused as having no reasonable prospect of success.
Timeline
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Employment start
The claimant began employment with Deloitte LLP.
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Resignation
The claimant resigned, claiming constructive dismissal.
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Preliminary hearing
A preliminary hearing was held where the claimant's constructive dismissal claim was struck out for lack of qualifying service.
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Judgment issued
The tribunal issued a judgment striking out the unfair dismissal claim and dismissing discrimination claims upon withdrawal.
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Reconsideration application
The claimant applied for reconsideration, arguing he was automatically unfairly dismissed under s.100 ERA 1996.
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Reconsideration refused
Employment Judge Frazer refused the reconsideration application, finding no reasonable prospect of success.
The legal issue
Whether the former employee could bring a constructive unfair dismissal claim despite having less than two years' service, and whether he could later argue that he was automatically unfairly dismissed for health and safety reasons under section 100 of the Employment Rights Act 1996.
The outcome
The tribunal struck out the constructive unfair dismissal claim because the former employee did not have the required two years of continuous service. He had worked from 1 June 2015 to 6 May 2016, a period of less than 11 months.
After the judgment, the employee applied for reconsideration, arguing that he was automatically unfairly dismissed under section 100 ERA 1996 (health and safety) and therefore did not need two years' service. The tribunal refused the application, finding no reasonable prospect of success because he had not raised this argument in his claim form or at the hearing.
No compensation was awarded as the claim was struck out.
Lessons & takeaways
- You generally need two years' continuous service to bring an ordinary unfair dismissal claim in England and Wales.
- If you think you have been automatically unfairly dismissed (e.g., for health and safety reasons), you must clearly state this in your claim form from the start.
- You cannot add a new legal basis for your claim after a judgment has been issued, unless you apply to amend before the hearing.
- Representing yourself can be risky if you miss key legal arguments; consider seeking early advice from an employment solicitor or Citizens Advice.
This case shows how strict the two-year qualifying period for unfair dismissal claims can be. The former employee resigned after less than a year with Deloitte LLP, claiming constructive dismissal. But because he had not worked for the required two years, the tribunal had no choice but to strike out his claim.
A late attempt to change course
After the judgment, the employee tried to argue that he was automatically unfairly dismissed under health and safety law, which does not require two years' service. However, he had not mentioned this in his original claim form or at the preliminary hearing. The tribunal refused his application for reconsideration, calling it 'another bite of the cherry.'
What this means for similar claims
If you believe you have been forced to resign because of a serious health and safety concern, you must make that clear in your claim from the outset. Waiting until after a judgment to raise it is almost certainly too late. The lesson is straightforward: know the legal basis for your claim before you file, and if in doubt, get professional advice early.
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