Forced to Resign Because of Bullying

An employee forced to resign because of bullying has a constructive dismissal claim under section 1 of the Unfair Dismissals Acts 1977-2015, argued under the reasonableness test: the employer’s conduct was so unreasonable that the employee could not be expected to stay. The conduct in question is not only the bullying but the employer’s response to it, and that response is measured against the Code of Practice on the Prevention and Resolution of Bullying at Work (S.I. 674/2020). This guide covers the Code’s definition and stages, the record that proves the claim, what happens when the employer investigates and finds nothing, and the alternatives to resigning.

1. Forced to Resign Because of Bullying: The Section 1 Claim

Section 1 of the Acts treats a resignation as a dismissal where, because of the conduct of the employer, the employee was entitled to resign or it was reasonable to do so. There are two tests: the contract test, which needs a repudiatory breach, and the reasonableness test, which asks whether the employer’s conduct was so unreasonable that the employee could not be expected to stay. Bullying claims are usually argued under the second. The claim is against the employer, so where the bullying came from a colleague or a manager the question is what the employer did about it once it knew: whether it followed its own procedure, investigated, protected the employee in the meantime, and acted on the result. The burden of proof is on the employee throughout, and the WRC expects the internal procedure to have been exhausted before the resignation. The practice page on constructive dismissal explains how the claim is run; the sequence of steps before resigning is in our constructive dismissal checklist.

2. The Code of Practice Definition (S.I. 674/2020)

The Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work was issued jointly by the Health and Safety Authority and the WRC. It defines bullying as repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work. A once-off incident is not bullying under the Code. Three parts of the definition carry most of the weight at a hearing. The behaviour must be repeated, so the record needs more than one incident, dated. It must be capable of being reasonably regarded as undermining dignity, which is an objective standard rather than the employee’s own reaction. And it must be at the place of work or in the course of employment, which includes work-related messaging and events away from the premises.

3. The Stages the Code Expects: Informal, Formal, Investigation, Outcome

The Code expects a sequence, and the employer’s own policy will usually mirror it:

• Informal stage. The behaviour is raised, with the person concerned or through a manager, with the aim of resolving it without a formal process. Record who you told, when, and what was agreed.
• Formal complaint. A written complaint to the employer setting out the behaviour, the dates, the people involved and the effect. This is the document the whole claim is later built on.
• Investigation. The complaint is investigated, both sides are heard, and witnesses are interviewed. The employee should know who is investigating, what is being investigated, and when it is expected to end.
• Outcome. A decision in writing with reasons, and whatever action follows from it. Where the policy provides an appeal, use it.

The stages matter twice over. For the employee, they are the procedure the WRC expects to have been exhausted. For the employer, they are the standard against which its own reasonableness is measured. An employer that has no procedure, or has one and ignores it, is already some way towards failing the reasonableness test.

4. The Grievance Record Is the Case

Because the burden is on the employee, the claim is only as good as its record. Keep a dated note of each incident, written on the day: what was said or done, by whom, who was present, and where. Keep the emails and messages that show the behaviour and your objections to it, forwarded to a personal address as you go, but take nothing confidential to the business. Keep the whole grievance file: the informal approach, the formal complaint, the acknowledgement, the investigation meetings and their notes, the outcome, the appeal and its result. If you were certified unfit for work during the period, keep the certificates and their dates; they form part of the timeline even though the Acts compensate financial loss only. And if an exit offer is made at any point, ask for it in writing and keep it; Ireland has no protected conversation, and an offer to leave made while a grievance is open can support the claim.

5. The Reasonableness Test Applied to Bullying

The adjudication officer looks at the employer’s conduct as a whole and asks whether it was so unreasonable that the employee could not be expected to stay. In a bullying case the questions that decide it are practical. Did the employer have a procedure that followed the Code, and did it use it? How quickly did it act once the formal complaint was made? Was the investigation impartial and did it hear both sides? Was the employee protected while it ran, or left working alongside the person complained of with nothing changed? Did the behaviour continue after the complaint? Was the outcome given in writing with reasons, and was there an appeal? The employee’s own conduct is tested too: whether the procedure was used and finished, whether the resignation followed the outcome or pre-empted it, and whether the resignation letter names the conduct and the grievance.

6. If the Employer Investigated and Found Nothing

Many bullying complaints end with a finding that the complaint is not upheld, and employees often resign at that point. The WRC does not re-run the investigation or decide for itself whether the bullying happened; it asks whether the employer acted reasonably. An investigation that was prompt, conducted by someone with no stake in the outcome, heard both sides and the witnesses, and gave written reasons is strong evidence that the employer did, even where the employee is convinced the finding is wrong. The claim then has to be built on something else: a process that was not fair, a finding that no reasonable employer could have reached on the evidence it had, behaviour that continued after the finding, or an outcome in which the complainant rather than the person complained of was moved, isolated or disadvantaged. Use the appeal before resigning, and put in the appeal exactly what was wrong with the process. An employee who resigns on the day the outcome arrives has handed the employer its answer.

7. The Health and Safety Penalisation Angle

The Code is issued jointly by the Health and Safety Authority and the WRC, and a complaint of bullying is in substance a complaint about health and safety at work. That opens a second route. Under section 27 of the Safety, Health and Welfare at Work Act 2005, an employee may not be penalised for making a complaint about health and safety, and a dismissal or other adverse treatment that follows such a complaint can be challenged under that Act as well as under the Unfair Dismissals Acts. Timing is the evidence: the date of the complaint, and the date of the first adverse step, whether a transfer, a reduction in duties, a disciplinary process that starts after the complaint, or a dismissal. Where the employer’s response to a bullying complaint is to turn on the complainant, the facts are covered in dismissed after raising a grievance or complaint. The Dismissal Claim Route Finder identifies which of the routes fits a given set of facts.

8. Mediation Before Resignation

Resignation is irreversible and the claim that follows it is uncertain, so the alternatives should be exhausted first. The Code’s informal stage exists to resolve behaviour before positions harden, and workplace mediation, with an independent mediator and both parties present, is the structured version of it. Richard O’Shea is a Law Society accredited mediator, and our sister site at workplacemediation.ie explains how workplace mediation is set up and what it can and cannot achieve. Once a WRC complaint has been lodged, the WRC itself offers mediation that is free, voluntary and confidential. Neither form of mediation pauses the six-month time limit under section 8(2), so a complaint should be lodged in time whatever discussions are under way.

9. What a Claim Can and Cannot Recover

Redress under section 7 is reinstatement, re-engagement or compensation for financial loss attributable to the dismissal, up to 104 weeks’ remuneration, or up to four weeks’ remuneration where there is no financial loss. There is nothing for stress or injury to feelings, the employee must mitigate by seeking work, and the WRC does not award legal costs, so each side pays its own whatever the result. One year’s continuous service is required under section 2(1)(a) unless a section 6(2A) ground applies, and the complaint must be lodged within six months of the date of dismissal. Employers facing a bullying grievance, or a resignation letter that reads like a claim, get the same analysis from the other side: whether the Code was followed, whether the investigation would withstand scrutiny, and what the record shows. We never act for both sides of the same dispute.