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Bullying and Harassment in Constructive Dismissal Cases

In the complex realm of employment law, the interplay between bullyingharassment, and constructive dismissal is both critical and contentious. Employees facing adverse treatment often grapple with the decision to resign due to intolerable working conditions. Let’s explore the nuances of bullying, harassment, and their impact on constructive dismissal, backed by important precedent cases.


Bullying and harassment in workplace
Bullying and harassment in workplace


Defining the Terms


Constructive Dismissal:

Constructive dismissal occurs when an employee resigns due to their employer’s conduct, even though the employer did not explicitly dismiss them.

The crux lies in the employee’s resignation being a response to a fundamental breach of their employment contract by the employer

Bullying and Harassment:

Bullying refers to persistent, unwarranted mistreatment that undermines an employee’s dignity, self-esteem, and well-being.

Harassment involves unwanted conduct related to a protected characteristic (e.g., race, gender, disability) that violates an employee’s dignity or creates an intimidating, hostile, degrading, or offensive environment.

The Breach of Contract Test


Western Excavating (ECC) Ltd v Sharp:

  • This landmark case established the breach of contract test for constructive dismissal.

  • Key points:

  • An employee must prove a breach of their employment contract by the employer.

  • The breach must be repudiatory, justifying the employee’s resignation.

  • The resignation must be in response to the breach.

  • Unreasonable delay in resigning after the breach may weaken the claim.

Bullying and Harassment: Important Precedent Cases


Omilaju v Waltham Forest London Borough Council:

Clarified the concept of the “last straw” in constructive dismissal.

Even if the last action by the employer doesn’t directly breach the contract, the cumulative effect of a series of incidents can amount to a breach.

Horkulak v Cantor Fitzgerald International:

Successfully argued that a campaign of bullying, harassment, and intimidation by the CEO constituted a breach of the implied term of trust and confidence in the employment contract.

Mahmud v BCCI SA:

Held that certain forms of unreasonable conduct by the employer constitute a breach of the implied terms of the employment contract.

The employer’s actions damaged mutual trust and confidence, leading to constructive dismissal.

Western Excavating (ECC) Ltd v Sharp:

The court emphasized that unreasonable employer conduct alone is not sufficient for constructive dismissal. The cumulative effect of a series of incidents can amount to a breach of contract. This case established the breach of contract test for constructive dismissal.


Understanding the intersection of bullying, harassment, and constructive dismissal is crucial. Seek legal advice to navigate these complexities and protect your rights as an employee.

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Can Canko

Employment, Contracts and Commercial Law

  • 17 years of legal experience

  • +500 case litigated (solo) globally

  • 276 appeals

  • 153 mediations

  • +$15bn transactional experience

  • Civil and common law qualifications

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