Constructive Dismissal and The Neurodivergent Employee

The resignation letter lands in your inbox and your first reaction is relief. The situation with this employee has been difficult for months. The manager is frustrated, the team is strained and now the problem has, apparently, solved itself.

Except it has not. A resignation is not always the end of legal risk. Sometimes it is the beginning of it. If an employee resigns because their employer has fundamentally breached their contract, the law treats that resignation as a dismissal. That is constructive dismissal and in my experience the claims involving neurodivergent employees follow a pattern so predictable I can usually describe the last six months of the employment relationship before I have read a single document.

This article explains what constructive unfair dismissal is, why neurodivergent employees feature in these claims so often, what the tribunals have actually decided and where managers get it wrong long before anyone mentions resignation.

What is constructive unfair dismissal?

Constructive dismissal is defined in section 95(1)(c) of the Employment Rights Act 1996. An employee is dismissed if they resign, with or without notice, in circumstances where they are entitled to resign without notice because of the employer’s conduct.

The leading case is Western Excavating (ECC) Ltd v Sharp [1978]. The Court of Appeal confirmed that the test is contractual. The employer must have committed a fundamental breach of the employment contract, sometimes called a repudiatory breach. The employee must resign in response to that breach and must not wait so long that they are treated as having accepted it.

The breach does not have to be of a written term. Most constructive dismissal claims rely on the implied term of mutual trust and confidence, confirmed by the House of Lords in Malik v BCCI [1997]. An employer must not, without reasonable and proper cause, behave in a way calculated or likely to destroy or seriously damage the relationship of trust and confidence. Behave that way and the employee can treat the contract as at an end, resign and claim they were dismissed.

So the question is never ‘did the employee really resign?’. They did. The question is whether your organisation’s conduct gave them the legal right to.

Why do these claims so often involve a neurodivergent employee?

Because constructive dismissal is rarely about one dramatic event. It is about an employment relationship eroding over months and that erosion happens fastest where there is a mismatch between how someone works and how their environment expects them to work.

Think about how these situations typically unfold. A neurodivergent employee is struggling, perhaps with workload, sensory environment, communication style or unclear instructions. They may have disclosed a diagnosis, may be awaiting one or may not yet know themselves. Their manager, untrained and under pressure, reads the struggle as attitude or capability. The response is informal pressure rather than structured support. The employee’s anxiety rises, performance dips further and the cycle tightens until the employee concludes the only way out is the door.

Every stage of that cycle is a potential breach building and because disability discrimination under the Equality Act 2010 is a day one right, these claims rarely arrive alone. A constructive unfair dismissal claim from a neurodivergent employee usually comes bundled with claims for failure to make reasonable adjustments, discrimination arising from disability and sometimes harassment. The constructive dismissal is the headline but the discrimination claims are often where the money is because discrimination compensation has never been capped.

Can failing to make reasonable adjustments amount to constructive dismissal?

Yes and this is the point employers most often miss. In Greenhof v Barnsley Metropolitan Borough Council [2006] IRLR 98, the Employment Appeal Tribunal held that a serious failure to make reasonable adjustments over a period of time was almost bound to breach the implied term of trust and confidence. The employee was entitled to treat it as a repudiatory breach, resign and claim constructive dismissal.

Read that again with your own organisation in mind. An adjustment request that sits unactioned for months is not just a discrimination risk. It can be the fundamental breach of contract that converts a resignation into a dismissal.

A more recent example shows how this plays out with a neurodivergent employee specifically. In Pearce v Barking, Havering and Redbridge University Trust (2022), an antenatal education midwife with dyspraxia succeeded in her claim for constructive unfair dismissal. The tribunal also upheld her complaint that the trust failed to make a reasonable adjustment by not allowing her support at informal meetings and found that this failure contributed to her decision to resign. You can read the full judgment on gov.uk. Notice the detail. The adjustment that failed was not expensive equipment or a restructured role. It was letting someone bring support to a meeting. Small refusals carry large consequences.

What is the last straw doctrine?

Constructive dismissal claims often end with something that looks trivial. A curt email. A meeting moved without warning. A holiday request declined. Employers look at the final incident and conclude the claim is hopeless because nobody resigns over an email.

The law sees it differently. Under the last straw doctrine, confirmed by the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2018], an employee can rely on a series of incidents which together amount to a fundamental breach. The final incident need not be a breach of contract in its own right. It cannot be utterly trivial but it only needs to add something to the cumulative picture.

This matters enormously for neurodivergent employees because their experience is so often exactly that, cumulative. No single sigh, comment or ignored request would found a claim alone. Eighteen months of them will. When a tribunal hears one of these cases it does not look at the resignation week. It looks at the whole relationship.

Where do managers get it wrong?

Almost never through malice. The managers I meet in these situations are usually stressed, undertrained and genuinely confused about why their usual approach is not working. But confusion is not a defence and the same mistakes appear in case after case.

They respond to disability-related struggle with visible frustration. In Watson v Roke Manor Research Ltd (2025), a software engineer with ADHD was subjected to his manager’s audible sighing and exaggerated exhales, was told to put his ‘ADHD aside for a moment’ and was described as a liability to the team. The tribunal found harassment and discrimination under the Equality Act. The judge noted that earlier adjustments and proper support for both the employee and the manager could have avoided the discrimination entirely. Non-verbal behaviour is evidence. Tribunals will hear about the eye rolls.

They keep everything informal. Quiet words, corridor conversations and undocumented expectations feel kind. For many neurodivergent employees they are the opposite because ambiguity is the very thing they find hardest. Informality also leaves the employer with no record of support when a tribunal asks what was actually done.

They treat the adjustment conversation as complete once it has happened once. Adjustments agreed and then gradually get dropped, forgotten by a new manager or eroded by workload appear repeatedly in the case law. An adjustment that is not maintained is a failure to adjust.

They mishandle the grievance. By the time [a neurodivergent employee raises a formal grievance](/knowledge/grievances-involving-neurodivergent-employees/], trust is already thin. A dismissive, slow or defensive grievance process is frequently the last straw itself.

They hear ‘I can’t carry on like this’ and do nothing. That sentence is the warning light. It is the moment to act, not the moment to hope things will just get better.

What does the Employment Rights Act 2025 change?

From October 2026 the time limit for bringing most tribunal claims, including unfair dismissal and discrimination, extends from three months to six months. An employee who resigns has twice as long to take advice and bring a claim.

From 1 January 2027 the qualifying period for ordinary unfair dismissal drops from two years to six months and the statutory cap on the compensatory award is removed. Today, an employee with 18 months’ service who resigns in these circumstances has discrimination claims but no constructive unfair dismissal claim. From January 2027 they will have both, with no ceiling on either.

Put plainly, the group of employees who can bring a constructive unfair dismissal claim is about to get much larger and the financial exposure on each claim is about to lose its cap. The early months of employment, exactly when many neurodivergent employees struggle most while adjusting to a new role, will no longer sit in a low-risk window. ACAS guidance on adjustments for neurodiversity already warns employers that a lack of support can leave workers feeling they have no choice but to resign. The legal consequences of that are about to sharpen considerably.

What should you do before it gets anywhere near a resignation?

The honest answer is that constructive dismissal claims are prevented months earlier, in ordinary management moments. Three things make the biggest difference.

First, take every adjustment request seriously and act on it visibly. Slow, silent or partial responses are how trust and confidence erodes. If you are unsure what would actually help, find out properly rather than guessing.

Second, train your managers before the difficult situation, not after it. Every case in this article features a manager who did not understand what they were dealing with. Training your managers in neurodiversity is cheaper than one preliminary hearing.

Third, when an employee tells you they are struggling, treat it as the start of a structured process. Listen, document, assess the environment and follow through. The employers who lose these cases are rarely the ones who tried and got something wrong. They are the ones who did not really try.

How a workplace needs assessment changes the picture

Most of what goes wrong in these cases comes down to one thing. Nobody ever properly worked out what the employee actually needed, so support was guessed at, delayed or dropped. A workplace needs assessment does that work in a structured way. It identifies the specific barriers in the role and environment, recommends practical adjustments and gives you a documented, expert-led record that you took the duty seriously. That document is valuable on a tribunal bundle but it is far more valuable for the resignation that never gets written.

If you have an employee who is struggling or a manager who is and you can feel a situation heading the wrong way, I would much rather talk to you now than after the resignation letter. You can book a free consultation and we can work out the right next step together.