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Constructive Dismissal

Useful Tribunal decision summarising the law

Constructive Dismissal – Useful Tribunal decision summarising the law


Although there was no finding that the Claimant was constructively dismissed, it is nonetheless useful to look at the recent Employment Appeals Tribunal case of Olivia Barry v Quinn Insurance Limited UD 1775/2010 for a synopsis of the law surrounding constructive dismissal.

Background

The Claimant in this case commenced employment with the Respondent on 31st March 2008 as a claims co-ordinator in the commercial claims section. The Claimant reported to a regional claims controller whom the Claimant reported as having difficulties with early in her employment. The Claimant gave evidence that he was very unapproachable, sneering, harsh and ignorant towards her and spoke to her as if she was a dog. The Claimant also believed that he commented on her physical appearance to another employee. The Claimant reported the matter to the Human Resources Department but felt her complaint was not treated seriously. The Claimant felt she was treated differently from other employees and felt isolated and began experiencing panic attacks. By the end of March 2009 the Claimant was moved to a private motor claims section and attended her doctor in April 2009 and was certified as medically unfit for work. The Claimant continued to submit medical certificates and resigned from her position on 24 February 2010.

The Respondent Human Resources Manager gave evidence that he received an email from the Claimant on 9th April 2009 and replied on 14th April 2009 asking to meet the Claimant and advised her that she could have the matter formally investigated and dealt with under the grievance procedure. On 14th September 2009 the Claimant submitted her complaint of bullying and was informed on 12th October 2009 that the investigation may take a number of weeks and reminded the Claimant of the offer of alternative roles. On 22nd October 2009 the Human Resources Manager provided the Claimant with an update and sought clarification on a number of matters to which the Claimant replied that the Respondent had had every opportunity to investigate over six months and was leaving the situation in the hands of her solicitor.  On 24th November 2009 the Claimant was informed that on balance there was no conclusive evidence of bullying and harassment and was given the right to appeal. On 25th November 2009 the Human Resources Manager invited the Claimant to discuss the findings but did not receive a reply. The Respondent wrote again to the Claimant  on 7th January 2010 and 27th January 2010. The Responded furnished the Claimant with the outcome of the investigation on 4th February 2010 and upon receipt of legal correspondence detailing the Claimant’s resignation, the Respondent again reminded the Claimant of the offer of alternative employment.

Determination

The Tribunal looked at whether the Claimant was unfairly dismissed and again referred to the definition of constructive dismissal in the Unfair Dismissal Acts 1977

“dismissal in relation to an employee means the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employee”

The Tribunal made a number of observations:

  1. The Tribunal must consider where because of the Employers conduct the Claimant was entitled to terminate her contract and that it was reasonable for her to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The Tribunal referred to the case of Brady v Newman UD 330/1979 in this regard.
  2. The Tribunal must consider whether the employers amounted to undermining the relation of trust and confidence between the parties in such a way as to go to the root of the contract. The Tribunal referred to the English case of Western Excavating (ECC) Ltd v Sharpe (1978) ICR which stated inter alia “….if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract then the employee is entitled to treat himself as discharged from any further performance”
  3. The Tribunal noted that the reasonableness test asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving. Circumstances which render it reasonable for an employee to terminate the contract of employment may constitute “constructive dismissal” and may justify resignation. If the changing nature of the tasks for which an employee was employed constitutes a repudiation of the contract of employment then a repudiatory breach would occur and a resignation may be considered an unfair dismissal by virtue of constructive dismissal.

The Tribunal noted that the facts of the case did not amount to such a breach of contract to the extent that the employee was left with no reasonable alternative but to leave. In applying the case of reasonableness to the Claimant’s resignation, the Tribunal found that the Claimant was not constructively dismissed. The Tribunal noted

“If the Claimant has an honest belief that she views the work environment as producing intolerable conditions she is entitled to resign and such resignation may be viewed by the Tribunal as a “forced resignation” constituting a “constructive dismissal”. The Tribunal also referred to the case of Wetherall (Bond St. W1) v Lynn (E.A.T) 1 which provided inter alia “…..it is the conduct of the employer which you must look at…But it is not the epithets which his conduct attracts, but whether you are entitled to treat your contract as at an end, and whether if you exercise your option to do so you have been “constructively dismissed”.

The Tribunal concluded that it could not find any substantial grounds that a dismissal took place and that the Claimant did not provide sufficient and adequate evidence that the Respondent dismissed her in a constructive fashion. The Tribunal noted that the Claimant did not act reasonably in resigning and did not appeal the outcome of the company’s decision in relation to the complaint of bullying and harassment. The Tribunal noted that although the Claimant’s line manager’s manner and use of language was unacceptable, it was not a sufficient reason for the Claimant to resign. Except in very limited situations the Claimant must exhaust all avenues for dealing with grievances before resigning.

The Claimant’s claim under the Unfair Dismissal Acts 1977 to 2007 and Minimum Notice Acts failed.