Bullying and unfair dismissal

Where an employee is bullied at work, he or she may be able to resign and claim constructive unfair dismissal, as long as they have enough service and bring the claim in time.

An ordinary claim for unfair dismissal requires one year’s service, or two year’s service where the employment started on or after 6 April 2012. In practice, resigning with a view to bringing a tribunal claim for unfair dismissal based on allegations of bullying is rarely a good idea. There are a number of reasons for this:

• a claim for constructive dismissal is only available if you are an employee. Agency workers or “temps” cannot bring this kind of claim. Neither can employees who are unable to show that they have enough continuous service (see the latest edition of LRD’s Law at work 2012);

• a claim for constructive dismissal will only succeed if the bullying behaviour was sufficiently serious to amount to a fundamental breach of the employment contract. A tribunal may not agree with an employee’s assessment of the seriousness of the behaviour. Alternatively, the tribunal may not agree that the employee resigned in response to the behaviour;

• the tribunal may decide that even though the employer’s behaviour was unacceptable, it “repaired” the breach of contract by its later actions (see Assamot v Spirit Pub — summarised below);

• a claim for constructive dismissal is all about facts — who said what to who and when, and how did it feel. These issues must be proved using witness evidence. Even if the bullying was witnessed by co-workers, they may be unwilling to give evidence;

• claims for constructive dismissal tend to be more expensive than ordinary unfair dismissal claims. Because they involve the tribunal in making an assessment as to what happened, this usually means detailed cross-examination of witnesses. This in turn takes more preparation and hearing time, leading to higher legal fees; and

• even if you win, unlike in a discrimination claim, you will not be awarded compensation for injury to feelings or damage to your health as a result of the bullying. Any compensation will be limited to net lost earnings resulting from the dismissal (see Dunnachie v Kingston-upon-Hull City Council [2004] IRLR 727).