2020-02-17
Legal Articles

A cautionary tale of constructive dismissal

Home / Knowledge base / A cautionary tale of constructive dismissal

Posted by Tina Chander on 12 February 2013

Tina Chander Partner - Head of Employment Law

It is notoriously difficult for claimants to succeed in a claim of constructive dismissal because the claimant must first demonstrate that their employer’s action (the respondent) amounted to a breach of the implied duty of mutual trust and confidence.

Whilst each case turns on its facts, what amounts to this fundamental breach was addressed in Five Elms Medical Practice v Hayes.

The respondent had received complaints from some of its staff regarding the claimant and, as a result, she was called to a meeting to discuss those complaints. It is generally normal practice for employers to call an employee to a meeting to discuss such matters without giving them formal notice of any such meeting, in order to investigate the concerns and determine whether there is a case to answer. No apparent problems here then….

However, the claimant subsequently raised an informal grievance about the meeting as it was held at the end of a long working day and was attended by an external consultant as well as the employer. This grievance was not dealt with in a timely manner and as a result the claimant resigned a month after the initial meeting.

The employment tribunal held that the way in which the original meeting had been handled, together with the failure to deal promptly with the informal grievance, amounted to a breach of the implied duty of mutual trust and confidence. This entitled the claimant to resign and claim constructive dismissal.

The respondent appealed but the Employment Appeal Tribunal (EAT) upheld the original decision. The EAT concluded that the employment tribunal was entitled to take into account the criticisms of the meeting and the failure to deal with the claimant's grievance when determining whether the duty of trust and confidence had been breached. The EAT held that it could not interfere with the employment tribunal’s decision, even if it would not necessarily have come to the same decision itself.

This case is a cautionary reminder to employers about the reasonable steps to take when discussing potential disciplinary matters with employees. Whilst non-notification of the meeting and the reason for it may not breach any implied term, the employer must consider other implications which may breach this duty.

About the author

Tina Chander

Partner - Head of Employment Law

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

Tina Chander

Tina is head of our employment law team. She deals with contentious and non-contentious employment law issues.

Recent articles

03 June 2020 Why use lawyers to draft your will or administer an estate?

In theory, drafting your own will using an off-the-shelf template, purchased online or from good stationers, can be a quick and easy way of leaving instructions on how you want your assets to be distributed after your death. Nonetheless, a will is a legal document and if it has been incorrectly worded and / or witnessed it may be invalid, meaning your estate would pass in accordance with the rules of intestacy (government provisions setting out how an estate should be divided if there is no will).

Read article
03 June 2020 Covid-19: a tour de force of force majeure?

In the following article, UK supply chain and logistics consultant, Paul Trudgian, and logistics law firm, Wright Hassall LLP, consider the impact of Covid-19 on the logistics industry. At the time of writing, we are now into week ten of lockdown and, by now, it is likely you will have read an article or two about the possibility of using force majeure to excuse non-performance of obligations due to Covid-19.

Read article
03 June 2020 Good markets hiding bad advice

Welcome to Wright Hassall’s podcast on “Good Markets Hiding Bad Advice”.

Read article
Contact
How can we help?
01926 732512
CALL BACK