Do I have to leave my job before making a claim?
No, you do not have to have left employment in order to bring most kinds of employment-related claims. (See our page for more information on bringing employment claims in the Employment Tribunal). For information on bringing employment claims in the civil courts, including which type of claims can be brought there, and what the difference is in bringing a claim to the Employment Tribunal or to a civil court, see our page on employment claims in the civil court.
For example, if you have been refused a promotion because of your pregnancy, you can bring a claim (e.g. this may be a claim for pregnancy discrimination or sex discrimination) while you are still working for your employer.
However, in practice, it can be tricky and complicated to bring a claim against someone you are still working for, and we suggest this is best regarded as a last resort.
Get advice early on your situation by talking to our expert advisors either via email or on our free Helpline, as you may be able to resolve this sort of issue informally, without having to start a claim.
Resigning from your job may feel like the only option sometimes, particularly if your employer is putting you under a lot of pressure, e.g. to agree to new terms and conditions, or if they are refusing to allow you to work flexibly. It can be particularly difficult if unfair treatment at work is making you feel unwell.
However, by resigning you can give up a lot beyond your income, including certain rights and protections which come with employment, and it may be more difficult to find a new role from the position of being unemployed.
It will almost always be far better for you to stay in your job for as long as possible, and until you are ready to leave, rather than feeling pushed to resign.
There are a few different reasons for this.
- Firstly, Your employer stops owing you certain duties when you leave your employment, such as the “duty of trust and confidence”, which applies to how they treat you, and there some are dispute resolution options which are only open to you while you are employed, for example having informal discussions with HR, or bringing a grievance.
- In addition, some rights are greater if you have been employed for longer, for example your right to a statutory redundancy payment or to a basic award of compensation in unfair dismissal cases increases with each year of employment.
- Always bear in mind that some statutory rights do not apply until you have at least 2 years’ continuous employment with that employer, for example the right not to be unfairly dismissed, and the right to a statutory redundancy payment. You can therefore be more vulnerable in a new role, until you have two years of service.
What are my options?
It may be helpful to think about whether you would want to stay in your role if something could be changed, e.g. your hours/working pattern, or if unwanted comments stopped? Do look at our other advice pages, e.g. on how to respond when your employer tries to impose a change to your working arrangement, how to make a flexible working request or how to challenge discrimination.
Do consider if you have any other options available to you to make some space and time to look at all of your options, e.g. can you take some leave, e.g. Parental Leave or Annual Leave? Have you spoken to your midwife or GP about your health and the effect of the situation on your wellbeing? Have you raised the issue with someone at work, informally or as a grievance? Here is more information on what you can do if you are having problems at work.
If you are being treated badly at work, we strongly recommend that you keep notes of what has happened, with dates and who was involved, as this is very important for resolving the issue, whether informally or formally through the courts.
Have a look at your employer’s grievance policy, and any other policies that they have which relate to the problem you are having – e.g. if it is harassment, this is likely to be covered in a staff handbook or bullying and harassment policy. What do these policies say you can do, and what do they say your employer should be doing? Take a look at the Acas Code of Practice for more information which may help:
If you feel that you have no option other than to resign, and you can show that your employer’s conduct or treatment of you was a breach of contract, and was so bad that you had no choice but to resign, you may have a claim for ‘constructive dismissal’. However, please note that constructive dismissal claims are difficult and very risky claims to bring – you will need to identify what the breach of contract was by your employer, with strong evidence of your employer’s conduct, you will have to show that this was the primary reason for your resignation, and that you did not delay in resigning, and as with any claim which is brough in any Tribunal or Court, as strong as you think your case is, you can never be sure of a successful outcome.
We strongly recommend that you seek expert legal advice before resigning, and advice on the strength of any potential claim first. You should also make yourself aware of the very strict time limits for bringing a claim in the Employment Tribunal, and of the way you need to raise this through Acas first – here is more information about time limits.
If you decide to resign, what should you think about?
If you decide to resign, or have already resigned, it is important to make sure you received everything you were entitled to, including payment for the correct notice period if you did not work all of your notice, payment for any accrued but untaken annual leave, and any commission or other payments you may have been due.
If you have taken more holiday days than you’re entitled to at that point in the year, your employer might take money from your final payment to make up for this, which can come as a nasty surprise.
Leaving as well as possible can be important, so that your employer has no reason to give you an unfavourable reference, so do try to keep all conversations as professional and constructive as possible – it can be a small world and it can damage you in the long run to leave with angry words exchanged.
Finally, before leaving a job, think carefully about what this decision will do to your income – know how much you have saved, what big bills or costs are coming up, what the employment market is like for your type of role, and how much your income would be if you had to claim benefits until you find a new role.
If you have questions about how your benefits might work, or how stopping work might affect your current benefits or those which a partner receives, you can call our free Helpline for advice.
Please note that the Department of Work and Pensions may want to know what your reason for leaving your last job was, and they may apply a “sanction” to your Universal Credit if they consider that you didn’t have a good reason for resigning.
This advice applies in England, Wales and Scotland. If you live in another part of the UK, the law may differ. Please call our helpline for more details. If you are in Northern Ireland you can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.
If you have further questions and would like to contact our advice team please use our advice contact form below or call us.
The information on the law contained on this site is provided free of charge and does not, and is not intended to, amount to legal advice to any person on a specific case or matter. If you are not a solicitor, you are advised to obtain specific legal advice about your case or matter and not to rely solely on this information. Law and guidance is changing regularly in this area.
We cannot provide advice on employment rights in Northern Ireland as the law is different. You can visit the Labour Relations Agency or call their helpline Workplace Information Service on 03300 555 300.