Take This Job and Shove It?- The Constructive Dismissal Conundrum

I'll try and keep this simple- one of the nightmares of Employment Lawyers when advising is deciding if a client has merely resigned or if he's been forced to resign - unfairly. The latter entitles him to claim for Unfair Constructive Dismissal. For resignation, he gets- zilch, for Unfair Dismissal,.. well he gets an award (discussed previously). This principle was established in a fairly old case Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27A bit of background, in an Employment Contract, there are usually written terms, e.g Contract or at least a letter of Employment (if none then damages are due to the Employee, by the way). The written terms define the basic terms of employment.

Also the Law usually will assume whats called Implied or Unwritten terms, the relevant one here being an Implied Term of Mutual Trust and Confidence, what this means is that there is a responsibility on both sides to treat each other and act in a civilised respectful manner, basically do your job without disrespecting me and my company verbally or in action e.g disloyalty, leaking trade secrets, assisting competitors. For employees it means, give me the tools to do my job, pay me as agreed and treat me with a minimum respect due to a human being or employee, no abuse racial, sexist or otherwise. Don't deliberately make things hard for me and don't undermine or harass me. Of course this list is not exhaustive and the rules often differ as to what is acceptable in different work environments, e.g a Building Site or Restaurant Kitchen will have different considerations from the Admin Department of a Women's Crocquet Club. Essentially, the Employer should not breach a Fundamental term of the Contract, e.g providing the Employer with a suitable working environment, work or indeed support, also he should not breach the Implied Term of Mutual Trust and Confidence. A Claim for Constructive Dismissal cannot stand on its own, the dismissal also has to be seen to be Unfair for the Employees to be successful.

How do you differentiate between resignation and Constructive Dismissal? Here are a few ground rules:

a. The action by your employer must go to the root of the relationship and result in it being absolutely clear that there is no way you can continue to work there or that it no longer wishes to respect or be bound by the Contract of Employment, an example being if a Supervisor is verbally abused and undermined by his/her Employer in front of his/her team and if deprived of responsibility; Sexual harrassment, physical intimidation/bullying, False accusations, preventing return to work after maternity leave etc. Clearly these examples show that the Employer either does not wish to keep the Employee on or doesn't care either way.

b. The action must be in direct breach of a Fundamental term of the Contract or the Implied Term of Mutual Trust and Confidence. The Tribunal time limits still apply here in that if the action you're complaining about took place over three months back, you're out of time. However if there's a series of events and the final act happens within the time limits then the previous incidents can be brought to the Tribunal as a Claim - this is described as "The Last Straw".(Explained further below).

c. The Employee must immediately or soon afterwards resign his/her appointment in reaction to the action of the Employer. The resignation must be clearly stated to be as a result of the action of the Employer, not merely an "I don't want to work here no more". Under the new Rules, the Employee must raise a Grievance even after resigning, asking that the Employers take action in considering his/her Grievance. If they fail to consider this within 28 days then a Claim can then be made to the Tribunal, if the Grievance is not raised, then The Tribunal may treat your Claim as having been filed prematurely and this usually happens after the Time Limits have then passed, so be very careful here- as always get advice!

To restate the point, Grievance procedure is now mandatory by Law, so even if your Employer doesn't have one, the Law provides for this and it has to be followed.d. The Employee must not do anything that shows that he/she accepts the action of the Employer, either by doing nothing or continuing to work even under protest. The reaction of the employee must clearly be that he/she finds the action unacceptable and that he/she believes that the Contract has been terminated by the Employer -by its conduct.

The circumstances in which an Employee can treat him/herself as having been constructively dismissed differ from case to case, but the basic points listed above are fundamental guides. A very serious word of warning- this is one of the most difficult Claims to prove in Employment Law, because the circumstances giving rise to an argument about Constructive Dismissal are usually quite emotive and often happen on the spur of the moment and on many occasions the communication by the Employee that he can no longer work for the Employer is by word of mouth and thus has to be put to proof in the Witness box. In addition the rules are so fluid its a diligent Lawyers nightmare and the lazy Lawyers comfort claim. Frankly If you believe your Employer has been guilty of discrimination, which in itself amounts to a fundamental breach of contract, you may be advised to file a Claim for Sex, Race or Disability Discrimination, because these do not require you to resign before they can be brought. In addition be warned you can only get damages for Injury to feelings if you bring a Claim for discrimination. All you're going to get for Unfair Dismissal is provable Financial loss as decided in Dunnachie v Kingston [2004] IRLR 727. I happen to have learnt this the hard way in that in a case I appeared in 2003/2004, the Law changed thrice in this regard within 6 months following Dunnachie , firstly with the Employment Tribunal saying you could get damages for Injury to feelings on Dismissal Claim, (following a case called Johnson v Unisys), the Employment Appeal Tribunal saying you couldn't , then the Court of Appeal once again saying you could and then the House of Lords saying finally that you couldn't. Save the expletives, I used up all that were available at the time.The moral of the story again is always get advice where possible, many a good claim has fallen simply because one of the many complex rules that guide the so-called Layman's bastion- The Employment Tribunal stand in the way.

A last word on the Last Straw, as said a series of incidents of breach by an Employer may all be linked up even if the earlier breaches were outside the time limits set by the Tribunal i.e 3 months., if the last is within time. I have however appeared in an Appeal which was finally determined in the Court of Appeal, which was to the effect that even if the act constituting the last straw was ambiguous in effect, once there had been established serious breaches previously, the Tribunal would still be entitled to hear the matter and decide if unfair. Now I till today do not agree with this decision in that it flies against all the prescriprtions laid down by Law as to time limits, whatever I feel however, its now the Law. Hopefully, someone will take the point to the House of Lords, where hopefully things shall be clarified.

© Edward Keazor