Thank you. As mentioned, this could potentially amount to constructive dismissal, which occurs when the following two elements are present:
· Serious breach of contract by the employer; and
· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.
A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).
The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.
As to bullying, it is usually defined as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient.” Whatever form it takes, it is unwarranted and unwelcome to the individual subjected to it.
Under law, specifically the Health and Safety at Work etc Act 1974, an employer has a duty to ensure the health, safety and welfare of its employees. In addition, they have the implied contractual duty to provide a safe and suitable working environment. That includes preventing, or at least effectively dealing with bullying behaviour occurring in the workplace.
In terms of what the victim of bullying can do to try and deal with such problems, the following steps are recommended:
1. First of all, and if appropriate, the employee should try and resolve the issue informally with the person responsible for the bullying.
2. If the above does not work or is not a viable option, the employee should consider raising a formal grievance with the employer by following the company's grievance policy. This formally brings the bullying issue to the attention of the employer and they will have a duty to investigate and deal with it.
3. If, following a grievance, the employer fails to take any action or the action they take is inappropriate, the employee would need to seriously consider their next steps. Unfortunately, employment law does not allow employees to make a direct claim about bullying. As such, the most common way of claiming for bullying is by resigning first and then submitting a claim for constructive dismissal as above
In general, a victim should try and gather as much evidence as possible before considering making a formal complaint and certainly before going down the resignation route. As bullying often takes verbal form, the best way is to keep a detailed diary of all bullying occasions so that there is at least some reference in written form that the employer and/or the tribunal can refer to.