Employees often face a very difficult decision as to whether to resign and try to claim constructive unfair dismissal. Few, if any employees will leave a job in such situations lightly, especially if they are aware that claiming constructive dismissal is not easy, with the initial burden of proof on the employee.
There are myriad different scenarios as to what may constitute a significantly serious breach of the employment contract by the employer to amount to constructive dismissal – the most difficult cases will often relate to issues which are not clear in the contract but go to the heart of the implied term of mutual trust and confidence in the employment relationship. below are some of the more obvious examples together with some examples and cases based on mutual trust and confidence.
In most cases, employees will only consult a solicitor when they have already decided that the position is intolerable, but if you are in any doubt as to whether you are legally on solid ground or have already resigned and want to claim constructive dismissal, get in touch with me, Ben Jones, to discuss your situation, initially free of charge.
Where the implied duty of trust and confidence has been broken, this will “inevitably” be serious enough to constitute a repudiatory breach (see here for general advice on breach of contract principles).
An employer will usually be in repudiatory breach of contract if it unilaterally reduces an employee’s pay, even for good reasons and to a small extent , or commission. However, in the unusual case of Adams v Charles Zub Associates Ltd , the EAT upheld a tribunal’s finding that the employer’s failure to pay a senior employee’s salary on time did not amount to a repudiatory breach of contract. As a member of the senior management team, Mr Adams was aware of the company’s cashflow problems and had received an assurance that it would pay his salary as soon as possible. In these circumstances, the tribunal had not erred when holding that the breach was not fundamental.
Changing the employee’s contractual duties, whether by removing some duties or requiring the employee to perform new ones, is likely to constitute a repudiatory breach.
It will be necessary to consider:
- what the employee’s duties under the contract were.
- the extent to which the duties were changed by the employer.
- was the employer entitled, by virtue of the contract, to change those duties.
- were the changes were sufficiently material to constitute a repudiatory breach.
The extent to which any new duties are outside the terms of the current contract will be a question of fact and degree. The existence of a flexibility clause may well be relevant to the scope of duties that may be required, but such a clause will not give the employer carte blanche to require the employee to perform any type of duty.
Discrimination against the employee will usually constitute a repudiatory breach.
Failure to deal with a grievance
It is an implied term that the employer will give an employee a reasonable opportunity to obtain redress in respect of a grievance; a breach of this term will constitute a repudiatory breach (WA Goold (Pearmak) Ltd v McConnell . However, a tribunal was entitled to find that poor handling of a grievance, including failing to give an explanation for rejecting an appeal and disclosing the existence and gist of a grievance to colleagues, did not constitute a repudiatory breach
Bad handling of disciplinary matters
Where an employee is suspended or presented with allegations about their conduct, there is scope to claim repudiatory breach where the suspension or allegation is manifestly unreasonable, particularly in cases where the allegation is of the utmost seriousness. Case examples of this include where suspension of an employee alleging sexual abuse was found to be “knee-jerk” and constituted a breach of trust and confidence or where disciplinary proceedings alleged dishonest behaviour, without any adequate basis for doing so and conducted the proceedings in an unreasonable way. It was apparent, from the evidence, that the employer had rushed into making formal allegations and that further inquiry was called for before the allegations were put to the employee.
Where the employer is subjected to an excessive workload, causing damage to the employee’s health the employee is likely to have a claim for constructive dismissal.
Intolerable working environment
There are many cases which have succeeded based on this type of scenario but each case will depend on it’s own facts and the type of work, employer and so on. Case law does help in demonstrating that an intolerable working environment may constitute a breach of the implied term of trust and confidence, even in sectors where the “norm” is high-pressure and high rewards , such as for City of London type scenarios, where a forceful management style and bad language are commonplace.
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