Frettens resident Chartered Tax Advisor, Lee Young, is one of a few solicitors in Dorset to be dual qualified as a Solicitor and Chartered Tax Advisor. In this article, he provides a summary of the budget tax implications.
What is constructive dismissal?
A constructive dismissal takes place when an employee resigns in response to a fundamental breach of contract on the part of the employer.
Can a single act be a fundamental breach of contract?
A fundamental breach may, if it is serious enough, consist of a single act. It may also be made up of a number of more minor incidents culminating a ‘final straw’.
In Williams v Aderman Davies Church in Wales Primary School a teacher resigned and claimed constructive dismissal over the way in which the employer had handled a complex disciplinary case against him.
He was concerned that evidence had been withheld and that this was part of a pattern of unfair treatment towards him and a failure take account of his mental health condition.
Access to union representatives in disciplinary hearings
In the end, his resignation was prompted by the employer’s decision that another employee who was his union representative, but who had also been accused of misconduct in the handling of his case should not be allowed to contact him until after the case was completed.
The Tribunal felt that this was not a matter on which the employer could be criticised – although they found much to criticise in the employer’s earlier handling of the case. They therefore dismissed the constructive dismissal claim.
What is a ‘last straw’ in constructive dismissal?
The employee could not rely on this decision as being ‘the last straw’ in conduct amounting to a fundamental breach of contract because it was, in itself, innocuous.
The EAT held that this was the wrong approach. What mattered was whether, when the employee resigned, the employer was in fundamental breach of contract.
Fundamental breach or overall conduct?
The incident that prompted the resignation did not have to be part of that breach as long as the employee – as in this case - was motivated at least in part by the overall conduct of the employer.
It was true that once the breach had taken place the employee had a limited period in which to decide what to do. Too much of a delay would lead to the employee ‘affirming the contract’ and losing the right to claim constructive dismissal.
The right to resign without notice
In those circumstances an entirely innocuous incident could not revive the right to resign without notice. In the case of Mr Williams however, there was no suggestion that the final incident occurred following an unreasonable delay. There were no grounds on which the Tribunal could have found that he had affirmed the contract.
What was more, the Tribunal’s criticisms of the employer’s earlier conduct were so severe that it was clear that there had been a fundamental breach of contract. In the circumstances the EAT ruled that Mr Williams had been constructively dismissed.
A specialist employment lawyer's opinion on constructive dismissal
Chris Dobbs on the final straw doctrine
This case is a warning to employers that a series of smaller issues can lead to a successful claim for constructive unfair dismissal. The ‘final straw’ doctrine is one used by many employees, arguing that a final issue, although in itself minor, was enough to ‘tip them over the edge’.
Employers should seek advice if employees suddenly resign, even if having given notice, after complaining about any issues.
Specialist Employment Solicitors in Bournemouth, Poole, Christchurch and The New Forest
Our specialist employment law & HR team have advised many businesses and employees on such matters.
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