Lots of our clients often refer to the fear they have of employees resigning and claiming constructive dismissal if they are dissatisfied with some element of their employment or how they have been managed.
Claiming constructive dismissal is an option open to an employee but we’d like to give you a bit more information on this subject so that you can understand the types of situations in which this could be a real risk to your business.
Criteria for constructive dismissal
There are three criteria for a constructive dismissal claim by an employee:
Burden of Proof on Employee
Firstly, you need to remember that the burden of proof falls to the employee if they wish to bring this type of claim. It is down to them to prove that you have fundamentally breached the contract of employment. It is not your responsibility to prove that you haven’t.
Proven Breach of Contract
Secondly, in order to be able to bring a claim for constructive dismissal there has to have been a significant and fundamental breach of contract. This can be a breach of the written contract or a breach of the implied contract i.e. a breach of trust and confidence. The important thing to remember is that the issue needs to be significant. Resigning and trying to claim constructive dismissal because an employee doesn’t like the new position of their desk is unlikely to be successful (unless of course you’ve moved them to the roof/store cupboard/fire escape!)
Immediate Response to Change
Thirdly, the employee needs to act promptly. Accepting their new desk on the fire escape and then resigning over the matter six months later and trying to claim constructive dismissal isn’t likely to be successful. By working at the desk they accepted the change.
If all of these criteria are met then the tribunal will look to see whether the behaviour of the employer has been reasonable.
Example case of constructive dismissal
A point of caution can be found in the case Logan v Celyn House Ltd . In this case Logan resigned claiming constructive dismissal because a grievance she raised did not achieve the outcome she was hoping for. The primary issue raised in the grievance related to bullying and a secondary issue was raised regarding sick pay being withheld.
The Employment Tribunal original found against Logan and concluded that she had not been constructively dismissed as they found that the primary reason she resigned was due to bullying but concluded that she had not been bullied.
This decision was overturned at the Employment Appeal Tribunal.
Whilst they did not dispute the fact that Logan had not been bullied they concluded that the withholding of sick pay did constitute a fundamental breach of the contract. The EAT found that it was irrelevant that Logan had stated that the withholding of sick pay was only a secondary reason for her resignation and that the act of withholding the sick pay was a significant enough breach to result in a claim of constructive dismissal.
Is your employee’s grievance a breach of contract?
So, if you find yourself faced with a grievance with a long list of issues take a look to see whether any of them could constitute a breach of contract. Better still, get us to take a look to see whether any of them could constitute a breach of contract.
If there is something there that looks like it would fit these criteria then you need to be aware of the potential for a constructive dismissal claim even if it’s a very minor part of the grievance. If not, you obviously need to follow the appropriate grievance procedure and work to resolve the issues but you shouldn’t worry too much about a claim coming your way.
Seek professional guidance
You will have noticed that we’ve used the words “unlikely to be successful” and “isn’t likely to be successful” and “shouldn’t worry too much”. This is our way of trying to make sure you don’t get too haphazard in your approach to these matters.
Employment Tribunals are not always predictable and every situation is different.
Whenever you find yourself in an employee situation which you feel has the potential to turn into something unpleasant we do recommend that you get some professional guidance and we know just the people to whom you should turn!
If you’re facing any employee issues that you’d like to get some guidance on them then give us a call on 0203 319 1649 and one of our advisers will be happy to help. Alternatively, you can use our contact form to drop us an email and one of our advisers will call you.