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.