Constructive dismissal

Workers suffer bullying and harassment for all kinds of reasons, often unrelated to the reasons protected by the Equality Act 2010. The law is particularly inadequate when it comes to protecting these workers. Theoretically, direct employees have the possibility of resigning and bringing a claim for constructive dismissal based on a fundamental breach of the employer’s general duty of trust and confidence, and of the employer’s duty to take reasonable care of an individual’s health and safety.

However, resignation is a dramatic step which should only ever be approached as a very last resort. Constructive dismissal claims are very difficult to win, not least because they usually involve fact-based disputes about who said what to whom. Supportive colleagues may well not be prepared to act as witnesses because of the threat to their own jobs. As well as the outcome being highly uncertain, the remedy is unsatisfactory.

Compensation is wholly inadequate, limited to a claim for net lost earnings. Unlike claims of discrimination, a claim for constructive unfair dismissal does not entitle an employee to compensation for injury to feelings or psychiatric injury, no matter how severe the bullying has been. Re-engagement or reinstatement is highly unlikely, especially in cases involving inter-personal conflict, unless the employer is large enough for redeployment to be a practical possibility. In the twelve months to March 2012, there were only five reinstatement or re-engagement orders in more than 5,000 cases where unfair dismissal claims were upheld.

In any event, tribunal claims for unfair dismissal must be brought quickly — within three months of the ending of the employment. For more information see LRD’s annual employment law guide Law at Work 2014 (www.lrdpublications.org.uk).