Constructive dismissal claim fails: less than two years' service and out of time
A recruitment agency worker who resigned after a return-to-work meeting could not bring an unfair dismissal claim because he had less than two years' service and presented his claim too late.
1 min read · Last updated 19 May 2026
Case details
- #constructive-dismissal
- #insufficient-service
- #out-of-time
- #holiday-pay-withdrawn
- #preliminary-issue
Key facts
- The claimant started employment on 17 March 2021.
- The claimant resigned on 31 October 2022 by signing a termination request.
- The claimant had less than two years' continuous service at the effective date of termination.
- The unfair dismissal claim was presented out of time.
- The holiday pay claim was withdrawn as the claimant had received all due holiday pay.
- The wrongful dismissal claim was also presented out of time.
Timeline
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Employment started
Claimant began employment with Pertemps Recruitment Partnership Ltd.
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Sickness absence began
Claimant was absent for 6 weeks due to head surgery.
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Occupational health referral
Respondent referred claimant to Occupational Health due to absences.
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Return to work
Claimant returned to work after sickness absence.
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Occupational health report
Report confirmed claimant fit to work.
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Meeting and resignation
Claimant attended a return to work meeting, was told of disciplinary process, and signed a request to terminate his contract with last day 31 October 2022.
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Effective date of termination
Claimant's employment ended.
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Early conciliation started
Claimant began ACAS early conciliation.
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Early conciliation certificate issued
ACAS early conciliation ended.
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Claim presented
Claimant presented his claim to the Employment Tribunal.
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Hearing and judgment
Preliminary hearing held; judgment dismissing claims given orally.
The legal issue
The tribunal had to decide whether the claimant had at least two years' continuous service to bring an unfair dismissal claim, and whether his wrongful dismissal claim was presented within the statutory time limit.
The outcome
The tribunal dismissed all claims. The holiday pay claim was withdrawn after the claimant confirmed he had received all due holiday pay. The unfair dismissal claim was dismissed because the claimant had less than two years' continuous service at the effective date of termination. The wrongful dismissal claim was dismissed as it was presented out of time, meaning the tribunal had no jurisdiction to hear it.
Lessons & takeaways
- Employees with less than two years' continuous service generally cannot bring an unfair dismissal claim, unless the dismissal is for an automatically unfair reason.
- Claims for unfair or wrongful dismissal must be presented to the tribunal within three months of the effective date of termination, including early conciliation time limits.
- Resigning under pressure may still count as a voluntary resignation, not a constructive dismissal, if the employee signs a termination request.
- Always check your continuous service length before bringing an unfair dismissal claim — even one day short can be fatal.
- Keep records of all communications and seek legal advice early if you think you have been constructively dismissed.
When service length and time limits block a claim
This case shows how strict the rules on service length and time limits can be for unfair dismissal claims. The claimant, a recruitment agency worker with 1 year and 7 months' service, resigned after a return-to-work meeting where he was told a disciplinary process was starting. He signed a termination request and left on 31 October 2022.
He later brought claims for unfair dismissal, wrongful dismissal, and holiday pay. But the tribunal found he did not have the two years' continuous service needed to bring an unfair dismissal claim. His wrongful dismissal claim was also out of time — he started early conciliation in March 2023, well beyond the three-month deadline from his termination.
What the employer did right
Pertemps Recruitment Partnership Ltd had referred the claimant to occupational health after his absence, and the report confirmed he was fit to work. The meeting that led to his resignation was a standard return-to-work meeting. The claimant voluntarily signed a termination request, which the tribunal treated as a resignation rather than a dismissal.
Why this matters
For employees, this case is a reminder that the two-year service requirement is a hard barrier for most unfair dismissal claims. Even if you feel pressured to resign, you may not have a claim if you have less than two years' service — unless the reason is automatically unfair (e.g., whistleblowing or discrimination). Time limits are also strict: you must usually start early conciliation within three months of your termination. Missing this deadline can mean losing your right to claim altogether.
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