Constructive dismissal

An employee who is bullied at work may be able to resign and claim constructive dismissal. A claim for constructive unfair dismissal normally requires two years’ service. There are exceptions to this, including where the resignation is due to an automatically unfair reason for dismissal, such as being picked on for taking part in union activities at an appropriate time, or where the bullying is discriminatory.

A constructive dismissal has three key elements:

• the employer must have fundamentally breached the employment contract;

• the employee must have resigned in response to the breach; and

• the employee must not have “waived” the breach, by continuing to behave as if they are willing for the contract to continue despite the contract breach (also known as “affirming” the contract).

An employee can work their full contractual notice before resigning and still claim constructive dismissal. However, there are difficult challenges associated with each of the above three elements and a constructive unfair dismissal claim linked to bullying or harassment is very risky. Legal advice should always be taken. For further information about each of them see LRD’s annual employment law guide, Law at Work (www.lrdpublications.org.uk/lawatwork).