Successfully defending a constructive dismissal case

21st February 2014

Successfully defending a constructive dismissal case

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Constructive dismissal cases are notoriously difficult to win. Despite this, a number are brought every year. No doubt, there are some constructive dismissal cases that are justified. The constructive dismissal claim we defended for our client at the end of last year was not one of them. This blog is about why the claimant in this case lost and what we can learn from it.


The claimant was employed by our client, a joinery and building company, as a driver/labourer. His role was to go on site and fit items manufactured by our client. In June 2012, he fell off a roof where he was fitting a dormer window. He refused to go to hospital and took no time off work.

On 29th August 2012, the claimant brought a grievance about the accident and about the behaviour of his manager, who he claimed was bullying him. For a number of reasons the grievance was not immediately dealt with. However, by the start of October, our client had begun investigating. A grievance meeting with the claimant was arranged for 19th October 2012.  Before the grievance meeting, our client interviewed the manager who explained, off the record, he had threatened to discipline and dismiss the claimant.

The grievance meeting took place as arranged and our client decided to think about the outcome over the weekend. They also wanted to give some thought about what the manager had told them. It was clear to them that the manager’s behaviour was highly inappropriate and that some disciplinary action needed to be taken.  Very sadly, the manager died suddenly while at work the following Monday.

The claimant went off sick a few days later. He was given the outcome of the grievance on 2nd November 2012. The outcome upheld certain aspects of the grievance. However, regarding the bullying, with the manager’s untimely death, no decision could be taken.

On 15th November 2012, our client received a letter from a solicitor representing the claimant. The letter set out a number of complaints and there ensued a short correspondence between the parties. We advised that the letters from the solicitor should be treated as an appeal to the grievance outcome and that our client should write to the claimant’s doctor to see if he was fit enough to attend an appeal meeting, even though off sick. The doctor agreed that he was.

On 29th January 2013, the claimant, through his solicitor, resigned and shortly thereafter, he claimed constructive dismissal in the tribunals.

Constructive dismissal: law

The tribunal in this case had to decide whether the circumstances of the resignation amounted to a dismissal and if so, was that dismissal unfair. Section 95(1) Employment Rights Act 1996, sets out the definition of constructive dismissal. It is where an employee terminates the employment contract in circumstances in which he is entitled to terminate without notice by reason of the employer’s conduct. The employee must establish a repudiatory breach of contract.

The implied term of trust and confidence is often cited in constructive dismissal cases. This is the term, implied into everyone’s contract that requires both parties to act in a manner which allows the working relationship to continue. The breach must go to the root of the contract and the claimant must resign as a consequence of the breach and not for any other reason. Finally, the claimant must not delay in his resignation.

In many constructive dismissal cases, the incident or act that provokes the resignation is not of itself very serious or a fundamental breach of contract. However, when taken together with other acts or incidents, the final act can be a last straw.

How this was applied in our case

In our case, the tribunal could not find any action or omission by our client that could amount to a breach of contract. The tribunal discuss at some length the concerns raised by the claimant regarding his manager. In particular, they focussed on two elements:

  1. Whether our client ought to have disclosed to the claimant what the manager had admitted in his interview. The tribunal’s view was that it would be unusual for an employer to do this: “In a situation where an employer, during a grievance, uncovers evidence which leads them to take disciplinary action against a fellow employee then normally for reasons of confidentiality this would not be disclosed to the employee who has lodged the grievance….Whilst some employers may decide to do things differently and disclose information, those employers who choose not to do so are perfectly entitled to take this view and indeed there are many good reasons for them doing so. If there is going to be a disciplinary procedure going forward then it would not be appropriate to disclose evidence to the complainer.” Our client had not breached any implied term by doing what they did.
  2. Whether, after the manager’s death, our client was right not to take a decision in respect of the grievance on the bullying issue. The tribunal considered that most businesses would have decided to either take no further action or take no further action but to disclose that it appeared that the manager was guilty. The tribunal concluded that most business would simply state that no further action could be taken. Our client had not breached any implied term by doing what they did.

The second point is particularly helpful, as it is not uncommon for someone to leave employment midway through a grievance against them. While you may want to comment on your views about the behaviour complained of, if the person accused has left before the grievance could be finalised or disciplinary action taken, you can choose simply to conclude that you can take no further action.

The tribunal also commented on the length of time it took for the claimant to resign. The claimant received the outcome of the grievance on 2nd November 2012 and resigned on 29th January 2013. Even though he was off sick, we had advised our client to treat the letters from the solicitor as an appeal and also to write to the claimant’s doctor to see if he would be fit to attend an appeal hearing whilst off sick. Taking all of this into consideration, the tribunal felt that the claimant had left the resignation far too long. So, if they had found that our client had breached the claimant’s contract, his claim would have still failed because of the delay.

The various points addressed by the tribunal are all helpful general guidance for dealing with situations where an employee is threatening constructive dismissal. For individuals, it is critical to identify a fundamental breach and then resign as a consequence of it, without undue delay. For the company, it is not unreasonable to refuse to come to a conclusion in circumstances where you have lost the alleged perpetrator and he or she can no longer be given the opportunity to defend themselves.

Sometimes, you get a case where you know in your gut that you should win it. This was one of them.

For more specific information or to discuss your requirements please call either Amanda Galashan or Julie Calleux at EmployEase on 0333 939 8741, or email us at This note does not constitute legal advice on any particular situation you may have.

Copyright: EmployEase 2014

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