Workplace Bullying and Constructive Dismissal: Your Rights
Updated: Oct 10
Workplace bullying and constructive dismissal are closely linked. If you face bullying or harassment at work, you may feel you have no choice but to resign. The law may then treat your resignation as a dismissal. This guide explains how, in plain words.
We look at what bullying and harassment mean, when they can lead to a claim, and the cases that shaped the law.
Defining the terms
Constructive dismissal
Constructive dismissal is when you resign because of your employer's conduct, even though they did not dismiss you in words. The key is that your resignation is a response to a serious breach of your employment contract by the employer.
For a full guide, read our page on constructive dismissal claims.
Workplace bullying
Workplace bullying is repeated, unfair treatment that harms your dignity, self-esteem and well-being. The law does not define bullying in one clear rule. But the government gives guidance on bullying and harassment at work.
Examples can include shouting, public humiliation, unfair blame, spreading rumours, or being left out on purpose.
Harassment
Harassment is unwanted conduct linked to a protected characteristic, such as race, sex or disability. It violates your dignity or creates an intimidating, hostile, degrading or offensive environment. It is covered by the Equality Act 2010.
When can bullying lead to constructive dismissal?
Bullying alone does not always give you a claim. You need to show that the employer broke an important term of your contract. Bullying can do this because every contract has an implied term of trust and confidence. An employer must not act in a way that destroys this trust.
If your employer bullies you, or lets others bully you and does nothing, this may break that term. A serious pattern of bullying over time is more likely to be enough than a single incident.
The breach of contract test
In Western Excavating (ECC) Ltd v Sharp, the Court of Appeal set the test for constructive dismissal in 1978. It means that:
You must show a breach of your contract by the employer.
The breach must be serious enough to justify your resignation.
You must resign because of the breach.
A long delay after the breach can weaken your claim.
Important precedent cases
Omilaju v Waltham Forest London Borough Council
This case explained the last straw idea. Even if the final act does not itself break the contract, the effect of a series of incidents can add up to a breach.
Horkulak v Cantor Fitzgerald International
In this case, the employee argued that a campaign of bullying and intimidation by a senior manager broke the implied term of trust and confidence. The Court of Appeal accepted that this kind of conduct can be a breach.
Mahmud v BCCI SA
The House of Lords held that some unreasonable conduct by an employer breaks the implied terms of the contract. The employer's actions damaged mutual trust and confidence.
What evidence do you need?
Good evidence is vital in a bullying case. Start collecting it early:
a diary with dates, times, places and names
emails, texts and chat messages
notes of meetings, and any witness names
copies of your complaint and your employer's reply
medical records if the bullying affected your health
Steps to take before you resign
Keep records. Write down each incident as soon as you can.
Raise it informally. Speak to your manager or HR if this is safe.
Make a formal grievance. Use the company's grievance process, and keep a copy of your complaint.
Get advice. Speak to an employment solicitor, a union rep or ACAS.
Think about your health. See your doctor if the bullying affects you.
Plan your exit. Do not resign in anger. Take advice on the best timing.
The legal definition of bullying
There is no single legal definition of bullying in UK law. ACAS describes bullying as unwanted behaviour that makes someone feel intimidated, degraded, humiliated or offended. The definition of bullying matters because it helps you describe what is happening to you. Use clear facts, not just labels, when you complain.
Bullying can be face to face, in writing or online. It can come from a manager, a colleague or a client. It is more serious when it is repeated, or when your employer knows and does nothing.
Harassment and protected characteristics
Harassment is different from general bullying because it is linked to a protected characteristic. The protected characteristics under the Equality Act 2010 are age, disability, gender reassignment, marriage or civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.
If the unwanted conduct relates to one of these, you may have a harassment claim as well as a possible constructive dismissal claim. A harassment claim does not need two years of service. Read more in our guide to workplace discrimination.
The effect on your mental health
Bullying can harm your mental health. You may feel anxious, low or unable to sleep. If this happens, see your GP and ask them to record it. Medical notes can be important evidence. They show the effect of the treatment on you.
Your employer also has a duty to take reasonable care of your health and safety at work. Failing to act on a complaint about bullying may breach that duty.
Your employer's duties
Employers should have clear policies on bullying and harassment. They should deal with complaints fairly and quickly. If they ignore your complaint, or treat you badly because you made it, that can make your position stronger.
Employers must take complaints seriously.
They should investigate fairly.
They should not punish you for complaining.
They should take steps to stop the behaviour.
Support from a trade union
If you belong to a trade union, tell your rep early. A trade union representative can go with you to meetings, help you write a grievance and give advice on the process. Many unions also give legal help to members.
Bringing a constructive dismissal claim: the first step
The first step is to get advice and gather your evidence. Then follow the grievance process. If you decide to resign, do it clearly and say that you are resigning because of the employer's conduct. Then contact ACAS about early conciliation before you claim.
A constructive dismissal claim can be hard to prove. A tribunal will look closely at the dates, the evidence and whether you resigned quickly enough. Remember that a claim because of bullying needs strong proof of how the employer treated you, and what the employer did or did not do about it.
Questions people ask
Can I claim constructive dismissal for bullying by a colleague?
Possibly. The employer may be responsible if it knew about the bullying and did not take reasonable steps. Report it in writing so there is a record.
Do I have to resign to complain?
No. You can raise a grievance and stay in your job. Resigning is a big decision, so take advice first.
Can I get compensation?
If a claim succeeds, a tribunal can award compensation. The amount depends on your losses and the rules at the time. A solicitor can give you an idea once they know the facts.
Time limits
A claim to an employment tribunal must usually start within three months, less one day. You normally have to contact ACAS first. For unfair dismissal, you usually need two years of service, but discrimination claims do not. See our guide to the steps of an employment tribunal claim and the government page on the employment tribunal.
Other routes if you are being bullied
You do not have to resign to get help. You might be able to make a grievance, ask for mediation, or bring a claim for harassment or discrimination while still employed. Read about how workplace discrimination is treated under the Equality Act.
Why take legal advice?
Understanding how bullying, harassment and constructive dismissal overlap is vital. Resigning without advice can put your claim at risk. A solicitor can look at your evidence, explain your options and help you choose the safest route.
If you are facing bullying at work, seek legal advice before you act. Early help can protect your rights as an employee.
