Why a constructive unfair dismissal claim is risky

There are many reasons why a constructive unfair dismissal claim linked to bullying or harassment is very risky. Legal advice should always be taken. Every claim depends on its particular facts, but here are some of the common risks:

• only employees can claim constructive dismissal. An employer may argue that you are not an employee. For example, an agency worker, a volunteer, or someone who is genuinely self-employed would not be able to bring this kind of claim;

• there are exceptions but in most cases, a claim for unfair dismissal needs two years’ continuous service, no matter how badly the employer has behaved. You may not be able to show enough service, especially if there are gaps in your employment record, for example if you are a zero hours contract worker;

• resigning is a very serious decision that obviously needs careful thought. Even so a tribunal may decide that by delaying, you put up with your employer’s behaviour for too long before resigning, and conclude that it was not as bad as you say;

• alternatively, if you resign quickly, a tribunal could rule that you jumped the gun, and didn’t give your employer a proper chance to resolve the issues;

• even if your line manager behaved badly, the tribunal may decide that the employment contract was not fundamentally broken because of prompt intervention by senior managers to resolve the situation, for example offering you a proper investigation or a full apology;

• more than just “unreasonable behaviour” is needed in order to win a claim. A tribunal may disagree with your assessment that your employer’s behaviour was bad enough to justify your resignation;

• the employer will no doubt line up witnesses to give evidence as to their version of events. Co-workers, even if they witnessed the bullying, may not be willing to give evidence to support your account out of worry for their own jobs. Often, the only witness giving evidence on your side will be you. The tribunal must listen to the evidence, cross-examine the witnesses and decide who to believe. The tribunal may prefer the employer’s evidence;

• to succeed, you must persuade a tribunal that you resigned in response to the claim, but the tribunal may decide that you had other reasons for resigning and that you would have left anyway;

• compensation awards for unfair dismissal are not high. The average (median) award in 2014 was just £5,016. Any compensatory award will be limited to lost earnings as a result of the dismissal. There will be no compensation for the bullying itself, no matter how bad it was.