1^st September 2011

What is constructive dismissal?

This is when an employee decides themselves that they will leave their job as a result of the employers conduct towards them.

The employee therefore must show that there has been a breach of contract and that, that breach was very serious. The employee cannot have accepted the breach. This would
be the case if for instance an employee was given a large reduction in pay on day 1 and
some months later is still working in that job. This would amount to acceptance. The employee must then resign in response.

The longer the time between the breach and the resignation, the less likely that it is connected. That is unless they can show they remained under protest and it was economically impossible to resign immediately. The breach can be a one off as above or a slow accumulation of acts. This is called the “last straw”, and is often the case in bullying or harassment which we looked at last month.
 

The most common breaches of contract

1. Wages - failure to pay or reduction.
2. Trust and Confidence.
3. Duties - a significant variation of an employees duties.
4.  Working hours - insistence that an employee work overtime with no contractual obligation to do so.
5. Job location - moving an employee beyond a reasonable commuting distance unless the
6. contract holds an express mobility clause not often viable in Jersey.
7. Suspension without pay.
8. Swearing at or criticising an employee, especially if at a manager in the presence of subordinates.
9. Inadequate support.
10. Dealing with grievances / disciplinary promptly.
11. Failing to provide a suitable/safe work environment.

As you can see this is a reaction by the employee unlike unfair dismissal which is a reaction by the employer.

Unfair Dismissal

Unfair dismissal is the most common reason relied upon by an employee when bringing a tribunal claim against an employer. The question then is whether the dismissal was fair or unfair. The key to this is did the employer act reasonably in the circumstances and follow a fair procedure? Each instance would be looked at on the individual facts.

This is probably the most difficult for employers if a member of staff is caught stealing and the employer seeks to dismiss immediately - this could be unfair. In this situation the employer must act reasonably. The courts have held this to mean that a procedure must be followed that allows the employee to know all the evidence against them and have the opportunity to defend themselves. To see the act and dismiss would not give the employee the opportunity to see the evidence against them and have the opportunity to defend themselves.

What would happen if the employer saw a member of staff taking £50 from a till and so sacked the employee immediately, when, given the opportunity to defend themselves, the employer might be taking money that they themselves had put into the till earlier in the day for safe keeping !

A Tribunal will ask "whether the employer genuinely believed that the employee had been guilty of the misconduct when it dismissed. If so were there reasonable grounds for the belief. Finally did the employer carry out as much investigation into the matter as was reasonable in all the circumstances before dismissing." This is known as the "reasonable test" from BHS Ltd v Burchell. The question is would a reasonable employer have responded in the same way.

A procedure must be followed that both employer and employee know and understand.

What's Current?

Tribunals pushed to be more pro active.

In a recent UK case Gayle v Sandwell & West Birmingham Hospitals NHS Trust the Tribunal was criticised for not being pro active.

Lord Justice Mummery commented,

"Procedural efficiency and justice are……. of direct concern to the judiciary: the courts and the tribunals are equipped with wide discretionary powers to ensure that cases are dealt with justly. One area of debate is about cases of little or no merit, but considerable nuisance value. All are agreed that they should be cleared out of the system as soon as possible. They should not be allowed to take up a disproportionate amount of time in the ET or cause the other party to incur irrecoverable legal costs and loss of valuable working time."

I for one would congratulate this view, it should not be a recommendation, it should be essential. In the UK the Tribunals have the opportunity to award costs against a nuisance claimant. We do not have this in Jersey, therefore I believe the Tribunal should be more willing to be pro active.

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