If you have resigned, either formally or informally, because you can no longer stand the bullying or harassment, you may be able to make a claim for unfair 'constructive dismissal'. To bring this kind of claim you must be an employee and have sufficient length of service.
For unfair dismissal claims, you must have worked for your employer for at least two years.
Your claim must be submitted to an employment tribunal within three months of the day you last worked.
There is no fee to access an employment tribunal, as of July 2017, when a union-backed case at the Supreme Court ruled charging for access to tribunals was unlawful. You will no longer need to pay a fee up front or apply for fee remission as had previously been the case.
There are many reasons why constructive dismissal claims should be approached with great caution:
- Only employees can bring constructive dismissal claims and the tribunal may not agree that you are an employee.
- The tribunal may not agree that you have been working long enough to bring your claim.
- A tribunal might disagree with your version of events.
- Only a fundamental (i.e. serious) breach of the employment contract can lead to a claim for constructive dismissal. A tribunal may disagree with you that the bully’s behaviour was bad enough to amount to a ‘fundamental breach’ – and may decide instead that you resigned of your own accord. If this happens, your claim will fail.
- Even though the employer’s behaviour was unacceptable, the tribunal may decide that the employer’s behaviour after the incident – for example, apologising – made up for the bad behaviour and 'repaired' the fundamental breach.
- The tribunal may decide that you resigned not because of the bullying, but instead because of some other unrelated issue. This would defeat your claim.
- It is very important to appreciate that above all, a constructive dismissal claim is all about facts – who said what to who, when and why. You will have to prove all these issues, usually by getting colleagues to give evidence for you in your tribunal hearing. But even if co-workers saw the bad behaviour, they may not want to give evidence against the employer, especially if they still work there.
- To try to cut the size of any compensation payment, employers often argue that the employee’s own behaviour contributed to their dismissal, or that their performance was not good enough, so that they would have been sacked anyway. This can be very distressing.
- Even if your co-workers are willing to come and give evidence at the tribunal, bullying cases usually require lots of evidence about different people’s behaviour so they tend to take up a lot of the tribunal’s time, as evidence will have to be heard and tested through cross-examination (questioning of witnesses). This in turn means that if you are paying a representative, their legal fees will be higher.
- Even if you win, unlike in a discrimination case you will not be awarded compensation for injury to feelings or damage to your health as a result of the bullying, no matter how bad the behaviour was.
Of course some situations are so bad that walking out is the only possible course of action. However, if at all possible, you should take expert advice before leaving your job, and make sure you exhaust any internal procedures. There is more about constructive dismissal in the Work Rights section of workSMART.
Remember that there is no need to leave your job in order to bring a claim for unlawful discrimination or harassment, or a claim for personal injury.