Autodismissal due to workplace harassment. How to claim compensation

Constructive dismissal due to workplace harassment is a right available to employees who suffer harassment in the workplace. It is not considered a voluntary resignation, as it entitles the employee to both compensation and unemployment benefits.

What is constructive dismissal? Definition and context

Constructive dismissal is a highly complex legal concept. It allows an employee to terminate their employment contract voluntarily, as if resigning, while still retaining the rights associated with dismissal. Specifically, this refers to entitlement to compensation and unemployment benefits.

Legal basis for dismissal due to workplace harassment

The legal basis for constructive dismissal due to workplace bullying — also referred to by the English term “mobbing” — is grounded in two articles of the Spanish Workers’ Statute:

• Article 4.2.e: states that the employer is obliged to guarantee the dignity and physical and moral integrity of the employee. Clearly, a situation involving workplace harassment would breach this principle.
• Article 50: specifies that an employee has the right to terminate their employment contract if they suffer serious breaches by the employer. These specifically include unpaid wages, repeated delays in payment, substantial changes to working conditions, or “any other serious breach of obligations”. Case law establishes that workplace harassment falls within this category.

But what is considered workplace harassment?

Before explaining how to apply for constructive dismissal, and in order to better understand this legal concept, it is important to define workplace harassment or mobbing. Specifically, it refers to systematic and persistent behaviour whereby an individual or group harasses an employee. It may occur vertically downwards (a superior abuses a subordinate), horizontally (between colleagues at the same hierarchical level), or, less commonly, upwards (an employee of lower status harasses someone in a higher position).

However, for workplace harassment to be recognised, the following elements must exist:

• Intent: the acts of workplace harassment must be intended to harm or undermine the victim’s dignity.
• Repetition: it cannot be an isolated incident; the behaviour must occur on an ongoing basis.
• Isolation: one of the objectives must be to socially marginalise the employee.

In exceptionally serious cases, the victim’s professional reputation may also be damaged. For example, by spreading rumours or derogatory comments that harm their reputation both inside and outside the company.

Imagine an employee who, during the company Christmas party, refused to engage in intimate relations with the company director. Afterwards, as retaliation, the employer begins assigning her a workload that exceeds her professional capabilities, removes her from projects she had been working on with colleagues, and spreads derogatory rumours about her. This would clearly constitute a case of workplace harassment.

How to proceed with constructive dismissal

First of all, it is important to make clear that this is not about forcing the employer to dismiss the employee for workplace harassment. In fact, one of the common reasons this situation arises is that the employer hopes the employee will resign voluntarily so that the company can avoid paying compensation.

In this regard, constructive dismissal due to workplace harassment is a right provided for under the Workers’ Statute. However, for it to be upheld by the courts, a strict procedure must be followed.

Notification to the employer

The employee must inform the employer that they have decided to rely on the constructive dismissal procedure due to workplace harassment. This must be done in writing, clearly stating the reasons why they believe a serious breach has occurred.

However, it is not enough simply to cite the reasons the employee believes justify constructive dismissal due to work-related stress. The letter must also be accompanied by supporting evidence, such as:

• Incident records: the employee should provide details of all incidents of harassment suffered, preferably including dates and descriptions.
• Evidence: for example, emails or WhatsApp messages containing evidence of harassment.
• Medical reports: these are often the decisive pieces of evidence. If a healthcare professional confirms that the employee has suffered physical or psychological harm as a result of the harassment, the case will be significantly strengthened.

Deadlines and considerations

In most cases, unless there is very clear evidence and the company wishes to avoid further issues, the employer will deny the dismissal and ask the employee to resign voluntarily if they wish to terminate the employment relationship. The company may also offer measures intended to alleviate the situation, such as transferring the employee to another workplace.

In any event, the company has 20 working days to challenge the constructive dismissal. If both parties fail to reach a conciliation agreement, a judge will decide whether the conditions for constructive dismissal are met or whether the situation should instead be regarded as a voluntary resignation.

Consequences of filing a workplace harassment claim

It should be noted that, if the employee can prove the existence of workplace harassment, they will be entitled to compensation equivalent to that awarded in cases of unfair dismissal — namely, 33 days’ salary per year of service, up to a maximum of 24 months’ pay. In addition, they will be entitled to receive unemployment benefits in the same way as any other employee dismissed for objective or disciplinary reasons.

We hope this has clarified any doubts you may have regarding constructive dismissal due to workplace harassment, whether you are an employee experiencing harassment or an employer whose employee has requested this solution. Get in contact with us and let us advise you in order to protect your rights.