What it means , how it relates to the conduct of your employer , and your associated legal rights .

Examples of serious misconduct by an employer include not paying an employee or demoting them for no reason , forcing them to accept unreasonable changes to how they work , or allowing them to be subjected to harassment or bullying in the workplace .

If an employee experiences misconduct by their employer but stays in their employment and takes no action , they could be deemed to have accepted the misconduct . Therefore , it is best for the employee to take action to try to resolve the issue , either informally or by raising a formal grievance . If the situation later proceeds to a legal claim , a tribunal may examine what steps the employee took to try to resolve the issue prior to the claim , so raising a formal grievance will provide evidence of this . If the issue cannot be resolved and the employee feels forced to resign , it is preferable that this is done in writing with clear reasons given for the resignation .

Following their resignation , if the employee makes a legal claim of constructive dismissal , a tribunal will consider whether to treat the resignation as constructive dismissal based on the employer ' s conduct . To make a claim , an employee usually needs to have been employed by the business for at least 2 years , but there are exceptions .

To support their claim , they should have evidence of the employer ' s misconduct , if possible , as well as the steps taken to try to resolve the issue and the opportunities given to the employer to rectify the problem .

The employer ' s misconduct may involve bullying , which can be difficult to prove and uphold , partly because there is no legal definition of bullying . There is unlikely to be a specific bullying clause in an employment contract , but employers have a responsibility and a common law duty of care to their employees to keep them safe , including protecting them from bullying . It is therefore considered a contractual understanding that an employee will not be subjected to bullying behaviour . To make a claim of constructive dismissal due to bullying , the employee needs to have evidence that the employer was negligent in managing bullying claims made by the employee , and that they felt unsafe or could not return to the workplace .

It is important to be aware that the process of making a claim of constructive dismissal against an employer can be very difficult and can affect an employee emotionally , mentally and physically . Anyone working in an environment so unpleasant that they feel forced to resign will already be affected to a degree , and making a claim may exacerbate this further . It is an arduous process , fraught with legal complexities that can be difficult to understand , and the burden of proof is on the employee , who may also have financial concerns and health issues to manage alongside the claim . Even when a tribunal decides in an employee ' s favour , the emotional effects of the claim can endure .

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