If I claim constructive dismissal, what do I have to prove?

In constructive dismissal cases, a bullied employee argues that he or she was forced to quit because of the employer's intolerable behaviour.

Constructive dismissal can be very difficult to prove. You should be very careful about resigning if you want to be able to claim unfair dismissal afterwards. See What if I walk out because I can't stand it? for some of the main reasons why you should be very wary of bringing this kind of claim.

The key legal test is whether the employer's failure to take action involved a serious or fundamental breach of contract. The terms of your contract can be broken in two ways:

  • Breach of an express term in your contract, e.g. failure to follow an anti-harassment or anti-bullying procedure requiring your employer to carry out a proper investigation, or breaking the agreed guidelines in other ways; and
  • Breach of a term implied in your contract. Implied terms include:
    • your employer's statutory duty to take reasonable steps to protect the health, safety and welfare of employees, under the Health and Safety at Work Act 1974 (HASAWA).This includes the provision of a safe place of work; and
    • common-law duties, including the duty of care, and the duty of mutual trust and confidence. Here, your employer has an obligation to ensure that you are not intimidated or humiliated, and are treated with dignity at work. They must deal with your complaint fairly and seriously.
Note: This content is provided as general background information and should not be taken as legal advice or financial advice for your particular situation. Make sure to get individual advice on your case from your union, a source on our free help page or an independent financial advisor before taking any action.

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