An employee complaining of workplace bullying may be able to bring a tribunal claim for constructive dismissal if they resign as a result of their employer’s failure to deal with the unwanted behaviour.
In this guide for employers, we look at how to reduce the risk of constructive dismissal claims for bullying by dealing with workplace complaints in a fair and and lawful manner.
Bullying in the workplace
While there is no statutory definition of bullying in the workplace, it is generally characterised as ‘offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient’ – as defined by ACAS. In other words, bullying is unwelcome behaviour from a person, or group of people, that makes an individual feel offended, intimidated, undermined, humiliated or degraded.
Bullying at work is not a legally actionable claim in itself but can, in certain circumstances, amount to harassment under the Equality Act 2010. As such, if an employee is being bullied in the workplace, and where that conduct amounts to harassment, this will be unlawful.
Under the 2010 Act, a person will be classed as harassing another person if they engage in unwanted conduct related to a relevant protected characteristic, and that conduct has “the purpose or effect of violating the other person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person”.
The protected characteristics referred to include: age; disability; gender reassignment; race; religion or belief; marriage or civil partnership; sex; pregnancy and maternity; and sexual orientation.
The statutory definition of harassment also extends to two other types of unwanted conduct, namely conduct of a sexual nature, where this has the same purpose or effect as set out above, or where an employee is treated less favourably because of either rejecting or submitting to unwanted sexual behaviour or behaviour related to gender reassignment or sex.
The law on harassment can apply to anyone who is thought to possess a protected characteristic, even if this is not the case, or because they are associated with someone with a certain characteristic. The unwanted conduct complained of also need not be directly aimed at the complainant, as long as that conduct has still had the effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
The law on constructive dismissal and bullying at work
Constructive dismissal is where an employer has committed a breach of contract so serious that it directly leads to an employee resigning, on the grounds of being justified in treating themselves as having been unfairly dismissed. To prove constructive dismissal, an employee must show that they have worked continuously for their employer for a period of not less than 2 years (unless the reason for dismissal is deemed automatically unfair). They must also show:
- There was a serious breach of contract, sufficient to justify their resignation.
- They resigned in response to that breach, and not for some other reason.
Grounds for constructive dismissal must be considered more than unreasonable behaviour. The employee has to show there was a fundamental breach of either an express contractual term or a breach of the implied term of mutual trust and confidence between the parties.
For a constructive dismissal bullying claim, an employee could argue that their employer has breached an express contractual term by failing to comply with any anti-bullying policy or procedures. Typically, however, a claim for constructive dismissal will be founded on the basis that an employer has failed to take action to prevent the recurrence of bullying that has resulted in a serious breach of the implied duty of mutual trust and confidence.
In cases of harassment, for example, even where you are not directly responsible for any unwanted conduct complained of by an employee, as their employer you will have a duty of care to prevent this conduct from recurring. This means that if you fail to take reasonable steps to put a stop to any harassment, this is arguably a fundamental breach of trust.
Even in circumstances where the unwanted conduct complained of does not amount to harassment, if the bullying, or any failure to prevent the bullying, results in a breakdown in the implied duty of trust and confidence between you and your employee, and again the employee resigns because of this, this can also lead to a claim for constructive dismissal.
What counts as bullying for a constructive dismissal claim?
There are three main factors to consider when determining if unwanted conduct has had the effect of violating an individual’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.
- The perception of the person subject to the conduct
- The other circumstances of the case, and
- Whether it is reasonable for the conduct to have that effect.
This means that the nature and severity of the unwanted conduct sufficient to justify a forced resignation can vary significantly, depending on the effect on the complainant, although in all harassment-based cases the conduct must relate to a relevant protected characteristic.
In contrast, bullying can apply to a much wider range of behaviours and can often be a lot more subtle than direct discriminatory behaviour. Common examples of unwanted conduct that could support a constructive dismissal bullying claim could include where an employee is:
- Ridiculed, demeaned or humiliated in some way
- Undermined by constant or unfounded criticism
- Talked down to or otherwise demeaned
- Ignored in conversations or discussions, or their contribution is disregarded
- Given heavier workloads or set unachievable targets
- Denied training or promotion opportunities
- Subjected to overbearing supervision, or other misuse of power or position
- Subjected to unfounded threats about job security
- Subjected to unreasonable or repeated demands
- Unfairly excluded from emails, meetings and team activities
- Unfairly excluded from social events
- Subjected to relentless banter, teasing, verbal abuse or sexual innuendo
- Subjected to rude physical gestures or facial expressions
- Subjected to false and malicious rumours
Bullying sufficient to prove a constructive dismissal claim is rarely based on one single incident, unless the conduct on any one occasion is especially serious and in response to which inadequate action is taken by the employer.
In most cases, a claim will be based on a course of conduct that an employer has failed to address, that over a period of time and taken cumulatively could be regarded as sufficiently serious to entitle the employee to treat themself as dismissed.
This means that even minor incidents of bullying in your workplace, or behaviour that taken in isolation may not be deemed especially serious, may be enough to prove a constructive dismissal bullying claim in circumstances where you have failed to prevent or eradicate this pattern of behaviour.
What must an employee do to bring a constructive dismissal bullying claim?
For a constructive dismissal bullying claim to succeed, an employee will need to show that the conduct complained of goes to the very root of the employment relationship. As their employer, where you are not directly responsible for the bullying itself, the employee will need to show that you failed to take reasonable steps to protect them to such a degree that it made their position at work wholly untenable and impossible for them to continue working for you.
Very often, this can come down to the timing of their resignation. If an employee waits too long to resign after the course of conduct complained of, you may be able to argue that they have accepted or waived the alleged breach of contract. Any delay may also highlight other possible reasons for the employee’s decision to resign.
However, where an employee has first lodged an internal grievance, and the matter has not been satisfactorily resolved in response, especially where the bullying behaviour is still continuing, any claim for constructive dismissal is unlikely to be affected by any delay in their resignation directly resulting from following your formal grievance procedures.
It is also worth noting that any failure by an employee to lodge a formal grievance prior to resigning is not a bar to any claim for constructive dismissal, although it can result in a reduction in any damages awarded by an employment tribunal of up to 25%.
Dealing with allegations of failing to deal with bullying and claims for constructive dismissal
Having been made aware of bullying in the workplace, either by way of an informal or formal grievance lodged by an employee, or even by someone else who has witnessed this type of conduct, you are under a duty to take all reasonable steps to prevent this from recurring.
Where the matter is relatively minor, you may be able to deal with this informally, for example, by way of a verbal warning to those responsible. It is not uncommon for alleged bullies to be wholly unaware of the impact of their behaviour, where an informal discussion can lead to a greater understanding and an agreement that the behaviour will cease.
However, you must ensure that there is no repeat of this behaviour and that the matter has been fully resolved. You should also retain an accurate written record of what has been alleged, what investigations have been undertaken and what action was taken in response. In this way, you will not only be able to pre-empt any potential claim for constructive dismissal, but also show that you have followed a full and fair procedure if you need to take formal disciplinary action against the perpetrator at a later date.
In more serious cases of bullying, involving either a one-off incident or series of incidents, or where the unwanted conduct continues following any verbal warning, you must fully investigate the matter, taking appropriate disciplinary action where needed. In these circumstances, you must follow any formal grievance and disciplinary procedures that you have in place, or adhere to the procedural guidance provided by ACAS as a minimum.
How much is compensation for a constructive dismissal bullying claim?
The compensation for a successful constructive dismissal bullying claim will comprise a basic and a compensatory award. The basic award is a fixed sum that is calculated to a statutory formula based on the employee’s age, length of service and week’s pay. A compensatory award is to compensate the employee for the actual money they have lost as a result of resigning. This includes loss of earnings, as well as a sum to reflect their loss of statutory rights.
Although there are statutory caps on the compensation that can be awarded if a finding of constructive dismissal is made against you, the financial consequences can be significant. It is therefore always best to consider what steps can be taken to prevent a claim from arising.
Preventing constructive dismissal bullying claims
Where bullying at work goes unchecked or is badly handled, this can create serious problems for your business and employer brand, and greater exposure to the risk of claims against you for constructive dismissal. As such, it is in your interests as a reputable employer to promote a positive and fair working environment for your staff at all times.
Even though it would be impossible to entirely eradicate unwanted conduct at work, you can help to minimise the risks posed by bullying in the following ways:
- Put in place a workplace policy on bullying and harassment, setting out what constitutes bullying, what behaviour will not be tolerated and how any complaints will be handled. You must ensure that all employees are aware of this policy and have easy access to it. You may also want to provide both management and staff with training on these issues.
- Foster a workplace culture where employees feel able to make complaints of bullying or harassment without fear of reprisals. Employees should feel confident that any complaint will be taken seriously, investigated fully, and treated confidentially where appropriate.
- Deal with any complaints of bullying or harassment promptly and impartially, taking appropriate disciplinary action where necessary against the perpetrators. You should invite employees to use your grievance procedure where appropriate, even where they have raised concerns verbally on an informal basis. You must never ignore or play down a complaint of bullying or harassment simply because it has not been put in writing.
- Follow your internal grievance and disciplinary procedures, adhering to the best practice recommendations set out in the Acas Code of Practice on disciplinary and grievance procedures at work. You should also ensure that you fully document any decision-making and action taken to evidence a full and fair procedure before any employment tribunal.
Constructive dismissal & bullying FAQs
Is bullying grounds for constructive dismissal?
Harassment or discrimination against an employee, and embarrassing or humiliating an employee in front of colleagues or clients would usually be classed as grounds for constructive dismissal.
What is the difference between unfair dismissal and constructive dismissal?
While unfair dismissal refers to an employer terminating an employee's contract of employment in a way that is unlawful, constructive dismissal is where an employee is forced to resign as a direct result of their employer's conduct or actions.
Is there a minimum service requirement for constructive dismissal?
In most cases, the employee must have worked for the employer for at least two years before they are eligible to bring a claim for constructive dismissal. This requirement does not apply if the reason for the claim is classed as 'automatically unfair' under the Equality Act 2010.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.