Browne-Wilkinson LJ described the potential difficulty of fitting together the concept of fairness and a constructive dismissal, but said: ‘In our judgment, the only way in which the statutory requirements . . can be made to fit a case of constructive dismissal is to read . . as requiring the employer to show the reasons for their conduct which entitled the employee to terminate the contract thereby giving rise to a deemed dismissal by the employer. We can see nothing in the decision in Savoia . . which conflicts with this view.’ and
‘Applying those provisions to the present case, the first question was whether Mr Berriman was constructively dismissed by the company’s attempt to impose on him a lower guaranteed wage. The Industrial Tribunal held that he was constructively dismissed and the company did not challenge this finding in the EAT. The next question was whether the company’s reason for dismissing Mr Berriman was the transfer of the undertaking to the company or a reason connected with it so as to bring the case within regulation 8(1). The Industrial Tribunal held that it was and that accordingly the dismissal was rendered unfair by regulation 8(1). The next question was whether the case was taken out of the automatic unfairness provided for by regulation 8(1) in that the company’s reason or principal reason for dismissing Mr Berriman was an ‘economic, technical or organisational reason entailing changes in the workforce’. The Industrial Tribunal held that the company’s reason for dismissal was such a reason, but the EAT reversed them on this point holding that, although the reason for dismissal was an economic, technical or organisational reason, such reason did not ‘entail changes in the workforce’. Finally, the Industrial Tribunal decided that the dismissal of Mr Berriman was fair within the meaning s57(3). That finding was challenged before the EAT who did not decide the point: there is no respondent’s notice raising the point before us.’
Judges:
Browne-Wilkinson LJ
Citations:
[1985] ICR 546, [1985] IRLR 305
Citing:
Cited – Savoia v Chiltern Herb Farms Ltd CA 1982
The employee submitted that a constructive dismissal cannot be fair.
Held: The submission failed. Waller LJ said: ‘He has cited to us a number of authorities, nearly all of which are against him but which he says are wrong.’ In considering . .
Cited by:
Cited – Bournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
Considered – Nationwide Building Society v Benn and Others EAT 27-Jul-2010
EAT TRANSFER OF UNDERTAKINGS
Economic technical or organisational reason
The Employment Tribunal erred in taking into account a perceived breach of the consultation requirements of Transfer of . .
Cited – Smith and Others v Trustees of Brooklands College EAT 5-Sep-2011
EAT TRANSFER OF UNDERTAKINGS – Varying terms of employment
The Employment Judge was entitled to hold that the agreed variation of the Claimants’ salary was not for a reason connected with a relevant TUPE . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 18 May 2022; Ref: scu.377345