Kerry Underwood

EMPLOYMENT: CONSTRUCTIVE DISMISSAL: THREE RECENT CASES

with 2 comments


Termination of Employment

 In

Butcher v Surrey County Council UKEAT/0022/19/LA

the Employment Appeal Tribunal held that a variation or withdrawal of a Notice of Termination can either be an express agreement in writing, or verbal, but it can also be implied by the conduct of the parties, and could be a mixture of something in writing and conduct.

A resignation can only be withdrawn by agreement of both the employee and the employer.

The Employment Tribunal’s decision that withdrawal could only be by express words, rather than conduct, was wrong.

Here the council had asked the claimant to reconsider her resignation and to stay on in employment, which she did beyond the termination date, even though there was nothing in writing about this.

The employee’s appeal was allowed, which allowed her to continue her claim for constructive dismissal and that claim was remitted to the Employment Tribunal.

 

‘Last Straw’ Doctrine in Constructive Dismissal

In

Williams v Governing Body of Alderman Davies Church in Wales UKEAT/0108/19/LA

The Employment Appeal Tribunal considered the issue of the last straw doctrine in a claim for constructive dismissal; the doctrine provides that even if the final act by the employer would not of itself justify the employee resigning and claiming constructive dismissal, it may be the last in a series of actions which, taken together, enable the employee to resign.

Hence, the name of the doctrine.

Here, the Employment Tribunal held that although there was much in the school’s actions before the final act that the claimant could have relied upon as a breach of the implied term of trust and confidence, it held that the final action in preventing the employee from contacting his colleague who was his Trade Union Representative, was innocuous, and therefore could not contribute to the school’s previous action.

Consequently, the constructive dismissal claim was dismissed.

The Employment Appeal Tribunal overturned that decision and substituted its own finding that the claimant was unfairly constructively dismissed.

In employment law the implied term of trust and confidence is known as the Malik term after the case of that name.

The Employment Appeal Tribunal considered in detail the decision of the Court of Appeal in

Kaur v Leeds Teaching Hospital NHS Trust [2018] EWCA Civ 978

which set out the factors to be taken into account, and the approach to be made, when considering whether there is a constructive dismissal.

The Tribunal should ask if the most recent act by the employer was not itself a repudiatory breach of contract, was it nevertheless a part of the course of conduct which viewed cumulatively amounted to a repudiatory breach?

That is almost a perfect description of the last straw doctrine.

However, that did not cover the factual situation here where the conduct relied upon as the last straw was not part of a course of conduct.

However, the Employment Appeal Tribunal held here that:

‘’… if the most recent conduct was not capable of contributing something to a breach of the Malik term, then the tribunal may need to go on to consider whether the earlier conduct itself entailed a breach of the Malik term, has not since been affirmed, and contributed to the decision to resign.’’

Thus

 ‘’so long as there has been conduct which amounts to a fundamental breach, the right to resign in response to it has not been lost, and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent, conduct has also contributed to the decision to resign. It would be true in such a case that ‘’in point of time’’, it will be the later conduct that has ‘’tipped’’ the employee into resigning; but as a matter of causation, it is the combination of both the earlier and the later conduct that has together caused the employee to resign.’’

Strictly, in such a case the most recent conduct is not a last straw.

The significance of the decision is to remind Employment Tribunals that they should not rule out a constructive dismissal claim simply because the final event is innocuous, or does not form part of a previous course of conduct which could enable the employee to resign and claim constrictive dismissal.

 

Enforcement of Continuation of Employment Contract

 In

Square Global Limited v Leonard [2020] EWHC 1008(QB)

the Queen’s Bench Division of the High Court was considering whether there had been a repudiatory breach by the employer entitling the employee to resign and claim constructive dismissal.

This was a factually complicated case concerning inter-dealer and agency broking services and enormous salaries and bonuses.

The significance of constructive dismissal in such a case is that a finding of constructive dismissal of itself means that the employer has been in  repudiatory breach of contract.

A party in repudiatory breach of contract cannot rely on any term of the contract, and thus cannot enforce post-termination restrictive covenants.

That is often the motive for claiming constructive dismissal.

Here, there was a six-month non-compete clause in the contract and that ran from the end of the notice period.

As there was no repudiatory breach, the employee was not entitled to resign without notice, which is also part of the test, that is that the breach is such that the employee is entitled to resign without notice, and so the High Court ordered that he would continue to be employed by Square Global Limited until the end of his six-month notice period, and would then be bound for a further six months by the non-compete clause, making 12 months in all.

Written by kerryunderwood

July 31, 2020 at 11:09 am

Posted in Uncategorized

2 Responses

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  1. Stuart,

    A couple of useful bits in these cases.

    Michael.

    Michael Johnson

    July 31, 2020 at 11:30 am


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