This post isn’t about Freddie Flintoff bowling 5-92 to defeat the Aussies at Lords (a very constructive dismissal in my view) but, sadly, is about some recent cases on the law relating to constructive dismissal. The recent case of Bournemouth University Higher Education Corporation v Buckland  EAT whilst not being as newsworthy as this week’s actions at Lords is, nevertheless, important stuff on the difficult topic of constructive dismissal. In my experience few topics cause as much confusion or are as overused as constructive dismissal. Every second client thinks they have or are about to suffer it.
So, what is it about? The definition provided by the Employment Rights Act 1996 s.95(1)(c) is that constructive dismissal occurs when an employee “resigns in circumstances such that he is entitled to terminate his [contract of employment] without notice by reason of the employer’s conduct”. In other words the employer commits an act (or even fails to do something that he said he would) and the employee’s response is to resign in protest. The breach doesn’t have to be of an express term of the policy (like a failure to pay salary, for instance): implied terms can be breached and the usual one that gets raised with constructive dismissal is that the employer has breached the implied term of trust and confidence.
The employer must be said to have committed a repudiatory (i.e. fundamental) breach of contract – it must be more than just unreasonable behaviour by the employer: it just go to the heart of the employment contract. This is called a WRONGFUL dismissal (which is NOT the same as an UNFAIR dismissal). If the employee then resigns in response to this breach he is said to have ACCEPTED the repudiatory breach. The contract is then discharged and the employee is free of all obligations under that contract. On the other hand, if the employee doesn’t accept the breach or resigns over some unrelated issue he may be said to have AFFIRMED the breach.
For an employee claiming constructive dismissal is a big step. The burden of proof is on the employee to (1) show that the employer was in breach, (2) that it was a fundamental breach, and (3) that he (the employee) resigned in response and (4) the employee mustn’t delay in acting. Effectively the employee resigns and walks out without his notice monies or any other compensation because the employer won’t pay notice monies to an employee who walks out. I often call it, perhaps rather melodramatically, the “nuclear option”.
A constructive dismissal is not always an unfair dismissal. It will be if the employer cannot show a potentially fair reason for the dismissal. The ERA lays down five potentially fair reasons – (1) redundancy, (2) capability, (3) conduct, (4) frustration of contract and (5) some other substantial reason. The employer needs to show that the action he took or threatened comes within one of these five categories. If he can’t then the dismissal is unfair. If he can show that the reason for dismissal was within one of these categories then he must then prove that he (the employer) acted reasonably in relying upon that reason for the dismissal.
How is that established? The case of Buckland (above) dealt with this issue. In most unfair dismissal cases before an Employment Tribunal the ET will be asked to consider whether employer’s actions were within the “band of reasonable responses” test – which is not where the ET decides what decision it would have taken if it had had to make that decision but whether the action the employer took was a reasonable response to the employee’s situation. Buckland confirms that the band of reasonable responses test is NOT relevant in cases of constructive dismissal. This has been an issue for some time in this area. What is the relevance to employees? This decision confirms that “mere” unreasonable conduct by the employer is not sufficient to establish constructive dismissal: there must be a breach of contract that goes right to the root of the employment contract and shows that the employer no longer wished to be bound by its terms. This raises the bar for Claimants in an already difficult area.
The second recent case that grabbed my attention is Wishaw and District Housing Association v Moncrieff EAT. It illustrates another aspect of the constructive dismissal situation: what if you don’t have one particular act or event constituting the repudiatory breach, but a series of events leading up to a “final straw”? This case dealt with that issue and confirmed that the final incident has to be more than trivial. The cumulative effect of all the breaches has to amount to a fundamental breach of contract.
I would urge any employee contemplating claiming constructive dismissal to get legal advice as a matter of urgency before taking (of failing to take) any action. Don’t rely on this post either! Constructive dismissal is a complex subject and you need to look carefully at each case on its own merits before deciding what to do.