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. No service is needed if the resignation results from discrimination or harassment under the EA 10 (see page 26) or the Public Interest Disclosure Act 1998 (see page 32).

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 (also known as “affirming” the contract), by continuing to behave as if they are willing for the contract to continue despite the contract breach.

An employee can work their full contractual notice before resigning and still claim constructive dismissal.

There are difficult challenges associated with each of the above three elements. There is more information about each of them in LRD’s annual employment law guide, Law at Work (www.lrdpublications.org.uk/publications.php?pub=BK&iss=1771).