Constructive Dismissal Claim – Grounds for Constructive Dismissal

Has your employer committed a serious breach of your employment contract?Has there been a failure to prevent bullying and harassment at work?

Has your job become unworkable or are you finding it impossible to go to work?

These problems are not uncommon. The answer often lies in talking to your employer and trying to resolve matters. Early constructive discussions can work wonders. Take a look at the situation from a different perspective. However, what happens if this does not work or if matters are more serious?What is constructive dismissal?

This is the term used where an employee resigns in response to their employer’s behaviour or that of other employees in the workplace. The behaviour must amount to a serious or fundamental breach of contract or the “implied duty of trust and confidence”. If this has happened to you, you may be entitled to treat yourself as having been “dismissed”.

For your constructive dismissal claim to succeed, you will need to show that:Your employer has been in serious breach of your employment contract or the implied duty of trust and confidence;You have resigned as a result of that breach; andYou have not affirmed the contract following on from the breach (e.g. by delaying your resignation).Examples of constructive dismissal
Here are some examples of serious breaches of contract committed by employers which have lead employees to resign and treat themselves as constructively dismissed:A reduction in pay or commission without the employee’s agreement;Removal of contractual benefits

Putting an employee of “garden leave” without a contractual right to do soSending out a defamatory press release and “bad mouthing” a fellow board directorFailure to give the employee reasonable redress through a grievance procedure;Discriminating against athe employee;Demotion for no proper business reason;Exposing the employee to violence or bullying;Exposing the employee to health and safety risk;Serious lack of support or overwork;Should I bring a claim for constructive dismissal?

You should consider matters carefully. These claims tend to be quite difficult to establish at an employment tribunal. There is often a series of events leading to a decision to resign and tribunals have to assess the overall quality of the employer’s behaviour and whether, in essence, it indicates that the employer was no longer prepared to be bound by the employment contract. A series of relatively trivial matters will not do, no matter how long they have gone on for.

It can be a very rocky road to follow. The employer can challenge your motives in resigning and can argue that other reasons were at play. Your own conduct and behaviour can and often will be taken into account. Unless there is a good reason not to, you will be expected to have tried to resolve matters with your employer first, often by using their grievance procedure.

Constructive dismissal claims can sometimes be linked to restrictive covenant disputes. If the employer is found to have been in serious breach of contract towards an employee and this breach is “accepted” by an employee resigning, then the employment contract is at an end. This means that any contractual protection in favour of the employer can “fall away” including any restrictive covenants. This often arises in cases where an employee wishes to resign and join a competitor in situations where there has been some element of poor treatment by an employer or where there may be an argument that the employer is in breach of contract towards the employee. As an employee, you may be able to take tactical advantage of this situation.

It goes without saying that in order to bring this type of claim, an employee must resign their employment. This is obviously a big step for most people and not one to be entered into lightly. In most cases, there is also a financial limit or a “cap” on the amount of compensation that can be awarded. Compensation is based upon any loss of earnings and you will need to give credit for any post resignation earnings in a new job. You must take reasonable steps to obtain further employment so as to “mitigate your losses”.

A claim for constructive dismissal needs to be lodged at the Employment Tribunal within three months of the date of the termination of your employment (normally the date on which your resignation takes effect) so you will need to act swiftly.

Disclaimer – The contents of this page are provided for general guidance only and do not replace the need to obtain legal advice about any given situation.

Managing Sickness Absence

Managing Sickness Absence

Employers and co-employees are invariably sympathetic to a genuinely sick employee. Whatever the circumstances, however, employers should be aware of the range of possibilities open to them when managing sickness absences.

Reporting procedures

All employees should be made aware of the procedure required of them if they are away sick. Usually, employees are required to telephone a nominated supervisor by a particular time, to keep that supervisor advised as to progress of recovery and to complete a self certification form on return to work. GP’s are not obliged to provide their patients with certificates for illnesses of 7 days or less.

Statutory Sick Pay (“SSP”)

The rules for qualifying and payment of SSP are complicated but in brief, the first 3 days of absence do not qualify for SSP. Thereafter, the standard rate of SSP applies and an employee reaches his or her maximum entitlement to SSP when payment has been made 28 times. Employees who exhaust their entitlement to SSP or who are excluded from the scheme may be eligible to receive State Incapacity Benefit which is contributions based. The amount of benefit payable to employees who satisfy the contributions conditions depends on their family circumstances rather than on earnings.

Company Sick Pay

Many employers pay sick pay in addition to SSP. This is either paid at the employer’s discretion or for a nominated period of full pay and then half pay. There is no legal obligation upon employers to do so and so employers are entitled to impose conditions which must be satisfied before an employee can receive company sick pay. Such conditions are usually contained in a company policy which also gives a company a range of options in circumstances where, for example, an employee’s attendance record is significantly worse than those of comparable employees, where an absence creates a particular operational difficulty or where it has gone on for a considerable length of time.

Company Sickness Absence Policy

Active involvement in monitoring sickness absence encourages communication with employees. A written policy is widely regarded as the most effective way of ensuring such communication can take place so that an employer can manage sickness absences in an appropriate way.

The Policy would usually

Stipulate circumstances in which the employer would not pay company sick pay i.e. where absence is caused by a self inflicted illness or outside activities, or elective surgery rather than on medical adviceThe procedure to be followed by the employee who comes into contact with anyone suffering an infection or contagious diseases or contracts such a disease themselvesStipulate the conditions of compliance required by the insurance company if PHI cover is available together with how such cover affects payment of salary
Such a policy can also give the employer the opportunity to implement some or all of the following options

Conduct an interview with the employee concerned so that :-
The employee is aware that his/her absence record is giving cause for concernThe employer can give consideration to any particular problems that the employee has with possible ways of helping the employee to resolve themAny work related health problems can be identified and suitable adjustments madeAgree a reasonable period of time over which the employee’s attendance can be assessed

The employer can indicate what the next step would be if the employee fails to reach any standards or targets which have been specified

Obtain further medical information

The employer may wish to contact the employee’s doctor in order to verify for itself the likely length of absence or the long term effect on capability in relation to job performance and work attendance. Alternatively, the employer may wish to request the employee to see a doctor appointed by the company.

Consider other possibilities

The employer may wish to offer alternative employment, a shorter working week or lighter duties where the sickness/illness does not allow the employee to carry out his/her existing duties.
Institute a disciplinary procedure where appropriate.

Deal with a disabled employee

An employee has a disability for the purposes of the Disability Discrimination Act if he/she has a physical or mental impairment which has a substantial and long term adverse effect on his/her ability to carry out normal day to day activities.

Where this is the case, an employer must

Treat that employee no less favourably than it treats or would treat others who do not have a disability If the employer does treat the employee less favourably, it must be able to show that the treatment is justified (but beware of the new disability regulations limiting the grounds on which discrimination can be justified Make a reasonable work adjustment in relation to the disabled person or show that the existing treatment is justified (provided it is not direct discrimination)

Otherwise, the employer runs the risk of receiving a claim for Disability Discrimination

Illness whilst on Holiday

Many employers might consider that employees who fall ill whilst on holiday, and so cannot fully enjoy their break, or are prevented from going because of ill health, must just take this in their stride and lose the holiday.

However recent cases emanating from the European Court of Justice, and followed in the UK, have held that if, through illness, an employee is prevented from taking booked annual leave, or cannot take full advantage of their leave because of illness, must have the right to take the annual leave lost or spoilt at a later date, and the period of illness marked down as sickness absence.
Obviously with someone away when they are ill this is difficult to monitor, and some employers have a policy which specifically states that annual leave lost as a result of illness will not be replaced. However, such a policy is now unlawful in the light of this case law.

 

The Employment Law Department of Royds

The Employment Act 2008 came into force on 6th April 2009, replacing the unpopular Statutory Dispute Resolution Procedures (SDRPs). Employers must now follow the Acas Code of Practice on Disciplinary and Grievance Procedures in most situations when they are contemplating dismissing or disciplining an employee or dealing with a grievance. For the full Code click here. The main provisions are summarised below.

Guiding Principles

The Code emphasises that employers and employees should always try to resolve disciplinary and grievance issues in the workplace internally. Where this is not possible, they should consider using an independent third party as a mediator.

Where formal action proves necessary, both sides should act fairly, consistently and promptly. Employers should carry out any necessary investigations to establish the facts of the matter, inform employees of the issues and give them the opportunity to explain their case or enlarge on their complaint before any decision is made. Employers should allow employees to appeal against any formal decision.

Discipline

Where an employer is contemplating dismissal or other disciplinary action against an employee, it should:

Investigate without unreasonable delay, and hold an investigatory meeting with the employee if necessary Inform the employee of the problem in writing in sufficient detail and with evidence to enable the employee to prepare to answer the case at a disciplinary meeting. Also provide the time and venue of the meeting and advise the employee of their right to be accompanied by either a colleague or a trade union representative Hold a formal disciplinary meeting at which both sides put their case After the meeting, decide whether any disciplinary action is necessary and inform the employee of its decision in writing Where misconduct is found, give the employee an oral or written warning, final written warning or notice of dismissal as appropriate Provide the employee with the opportunity to appeal and hold an appeal hearing without unreasonable delay, preferably with a manager who has had no previous involvement Inform the employee of the results of the appeal hearing in writing as soon as possible Grievance.

Where an employee feels they need to raise a formal grievance, the following process applies:

The employee should set out their grievance in writing without unreasonable delay and with a manager who is not the subject of the grievance The employer should hold a formal grievance meeting without unreasonable delay to discuss the grievance and advise the employee of their right to be accompanied.

An investigation may be necessary beforehand After the meeting, the employer should decide whether or not to uphold the grievance and inform the employee of its decision and proposed action (if any) in writing Where the employee feels their grievance has not been satisfactorily resolved, they should appeal in writing The employer should hold an appeal hearing without unreasonable delay, preferably with a manager who has had no previous involvement The employer should inform the employee of the results of the appeal hearing in writing without unreasonable delay
Employees no longer have to lodge a formal grievance before bringing certain claims against their employer or former employer in the Employment Tribunal.

Gross Misconduct

The Code does not provide much assistance for employers in cases of summary dismissal for gross misconduct: it merely specifies that a fair disciplinary process should always be followed. To avoid breaching the Code, employers would be best advised to suspend the employee and implement an immediate disciplinary process before dismissing them for gross misconduct. Suspension has the same effect as dismissal in removing the employee from the workplace but allows the employer time to conduct a disciplinary process in accordance with the Code.

Right to be Accompanied

Employers have an active requirement to notify employees of their right to be accompanied to formal disciplinary or grievance meetings and should not unreasonably refuse the employee’s chosen companion. The Code is unclear as to whether an employee has the right to be accompanied at an investigatory meeting; employers would be best advised to err on the side of caution and consider such a request in accordance with the Code’s principles.

Failure to Follow the Code

Failure to follow the Code does not automatically make the dismissal or disciplinary action taken unfair and the employer therefore liable. The Code recognises that the size and resources of an employer may make it reasonable for them to depart from some of the provisions. But Tribunals will take the Code into account when considering all relevant claims.

Tribunals have the discretion to increase or decrease awards made by up to 25% if either the employer or the employee has unreasonably failed to comply with the Code.

Exceptions

The Code does not apply to dismissals for redundancy or on the expiry of fixed-term contracts, although employers should still ensure they consult employees and follow a fair procedure in these situations.

Action Needed

Employers should consider the need to update their internal disciplinary and grievance procedures to reflect the changes in the law and ensure they comply with the Code. Many internal procedures were changed to refer to the SDRPs and, although these are no longer legally binding, employers risk a challenge of breaching their own procedures if these are deemed contractual but are not followed.