Harassment in the workplace can be devastating. Rita Rogerson, head of the employment department at Langleys Solicitors in York, sets out the options that victims have.

Harassment in the workplace can have a devastating effect on its victims, resulting in stress, absenteeism and in extreme circumstances, psychiatric illness. It can be costly for both the employer and the employee.

In an ideal world, all employees would be able to turn to an internal anti-harassment or grievance procedure. This in turn should lead to the perpetrators of the harassment being disciplined and the harassment ceasing. This sends a strong message to the workforce of the standard of behaviour that will not be tolerated and promotes a safer environment and a happier workforce.

However, for the bulk of those employees who suffer harassment, it is not so simple. Either there is no such internal policy in place or, if it exists, it is not followed. Their grievance may not be taken seriously or perhaps, more commonly, the actual perpetrator of the harassment is in a position of power and the employee suffers in silence rather than raise a complaint because they fear the harassment will increase if they make a fuss.

So what can an employee in such a situation do? For those employees who are subject to discrimination on the basis of their race, sex or disability, one option is a complaint of discrimination.

To pursue such a complaint the employee does not have to resign. You can make a complaint of harassment and still continue working. If your employer then victimises you because you have complained you are protected by the law and can make a further claim. However, it is essential that any complaint of discrimination is lodged with the Employment Tribunal within three months of the alleged act of discrimination.

To be successful in such a complaint, the employee will need to demonstrate that they have been subjected to a disadvantage as a result of either their sex, race or disability. Proving discrimination is difficult, because it is very rare for the perpetrators to admit they are sexist or racist. The applicant has to show that there are facts from which you could infer discrimination, such as a woman employee being excluded from a male-only event. Such a woman could argue that as the event was male-only, she was excluded by reason of her sex. However, the employer would get the chance to show that there was a non sex-related reason why she was excluded. In the absence of this the woman would succeed.

Another option in cases of harassment - what you might call the ultimate remedy - is to resign on the basis that the employer's conduct, as well as being discriminatory, could constitute a fundamental breach of contract entitling them to treat themselves as dismissed. The employee would be relying upon certain implied contractual terms such as that of trust and confidence and the duty to provide a safe working environment.

Examples where such a claim might be an option include where the employer has humiliated the employee in front of other employees or clients; or where an employer fails to take an employee's complaint seriously or make a reasonable investigation of it.

Langleys recently successfully represented an employee who was discriminated against on the grounds of her sex when, as the only female employee, she was excluded from a male-only works event.

She complained about the treatment but her employer, instead of dealing with her complaint, trivialised the matter and made sexist jibes. As a result she resigned and successfully claimed constructive dismissal and sex discrimination.

It is important to note that to succeed in a constructive dismissal claim, the breach of contract must be fundamental. Such a breach may take the form of a number of incidents which, although trivial in themselves, constitute a fundamental breach when taken together over a period of time. A one-off incident, if sufficiently serious, may also on its own represent a fundamental breach.

For an employee to be successful at an Employment Tribunal in a complaint for constructive unfair dismissal, they must also demonstrate that they resigned as a result of the fundamental breach and that their resignation was proximate to the breach.

Resignation letters sent at the time are good evidence and should be carefully written. It is important that if they are later going to complain about the way they were treated, employees should not make up other reasons for leaving to part on good terms with their employers. In the case referred to earlier, the employer tried to argue there were lots of reasons other than their conduct for the employee's resignation. However, the employee had resigned immediately following the meeting where her complaint was trivialised and made clear reference to the meeting as the reason for her leaving in the resignation letter. She made it clear that she did not want to resign, but given that her complaint was not going to be treated seriously, felt she had no choice.

If you are planning to seek constructive unfair dismissal, it is important that you do not delay too long. There is no hard and fast rule but the longer an employee waits before resigning, the more difficult it is for them to be successful unless there are exceptional circumstances. If the employee leaves it too long before resigning, they can be deemed to have accepted the breach and thus will be unsuccessful in their claim.

With the Government extending discrimination legislation to protect those who are discriminated against on the grounds of sexual orientation and religious belief from December 2003, and with "harassment" as a specific offence, employers will have to be even more careful. The Government's consultation on the new regulations ends on October 10 this year.

Updated: 09:15 Thursday, September 18, 2003