EAT (Unfair Dismissal: Constructive Dismissal) CONTRACT OF EMPLOYMENT – Wrongful dismissal
The Claimant committed gross misconduct and, following a fair investigation, was dismissed, the Employment Tribunal finding that dismissal was within the range of reasonable responses.
The Claimant brought an internal appeal and the Respondent allowed the appeal on the basis that the sanction was in the view of the appeal officer too harsh, and a sanction of demotion was substituted. After consideration the Claimant decided that he would not accept demotion, and he resigned.
He claimed in the Employment Tribunal that he had been constructively dismissed and that such dismissal was wrongful and unfair. His case was that (1) the original dismissal fell away because of the successful appeal; (2) that there was no contractual right to demote; (3) the demotion amounted to a fundamental breach of contract; (4) by resigning he accepted that breach and was constructively dismissed; and (5) that the constructive dismissal was wrongful and also unfair because the terms of the demotion were so harsh. There were interesting points raised by the appeal particularly in relation to (1) and (3), but the appeal was dismissed without further consideration of those points because, in the light of the findings relating to the original (direct) dismissal, the claim that the putative constructive dismissal was unfair was hopeless, and, given that the Employment Tribunal had found that the Claimant had indeed committed an act of gross misconduct, the Respondent was entitled to dismiss him, and he could not claim wrongful dismissal.
Shanks HHJ
[2016] UKEAT 0201 – 15 – 1102
Bailii
England and Wales
Employment
Updated: 12 January 2022; Ref: scu.560986