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.
Whether the range of reasonable responses test has any place in the question as to whether an employee has been constructively dismissed. Fairbrother and Claridge considered and not followed.
General observations on approach to constructive unfair dismissal.
Peter Clark J said: ‘we commend a return to settled authority, based on the following propositions:
(1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied.
(2) If, applying the Sharp principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed.
(3) It is open to the employer to show that such dismissal was for a potentially fair reason.
(4) If he does so, it will then be for the Employment Tribunal to decide whether dismissal for that reason, both substantively and procedurally (see Sainsbury v Hitt [2003] IRLR 23), fell within the range of reasonable responses and was fair.’
Judges:
Peter Clark J
Citations:
[2009] UKEAT 0492 – 08 – 0805, [2009] IRLR 606, [2009] ICR 1042
Links:
Statutes:
Citing:
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .
Cited – British Leyland v Swift CA 1981
The court upheld the dismissal by employers of a long-serving employee who had stolen and subsequently altered a road fund licence belonging to his employers and had persistently lied about the incident.
Held: When considering the decision of . .
Cited – Claridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
Cited – Abbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
Cited – Haddon v Van Den Bergh Foods Ltd EAT 10-Nov-1999
An employee did not return to work after a presentation to him of a good service award, because he had drunk alcohol. A new policy required staff not to return to work after consuming alcohol, but had also said that alcohol would not be provided. . .
Cited – Hamilton v Tanberg Television Ltd EAT 12-Dec-2002
. .
Cited – Beedell v West Ferry Printers Ltd CA 15-Mar-2001
It could be correct for an appeal to be dismissed rather than allow an appeal against the grant of leave to appeal. The subject matter was important and highly controversial, even if the law appeared to be clear and the appeal to be hopeless. To . .
Cited – Foley v Post Office; HSBC Bank Plc (Formerly Midland Bank Plc) v Madden CA 31-Jul-2000
When an Employment Tribunal looked at whether a dismissal was reasonable, the test related not to an assessment of what tribunal members would think or do, but rather whether to ask whether the employer’s response was within a ‘band or range of . .
Cited – Gilbert v Goldstone Ltd EAT 1976
Unreasonable conduct by an employer was sufficient to amount to constructive dismissal, regardless of whether it involved a breach of contract by the employer. . .
Cited – Turner v London Transport Executive CA 1977
. .
Cited – Western Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
Cited – Genower v Ealing, Hammersmith and Hounslow AHA EAT 1980
EAT The EAT upheld an industrial tribunal’s finding that by unilaterally varying the employee’s job description the employer was in fundamental breach of contract, entitling the employee to resign in accordance . .
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 – Berriman v Delabole Slate Ltd CA 1985
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 . .
Cited – Baldwin v Brighton and Hove City Council EAT 14-Dec-2006
EAT Sex Discrimination – Transsexualism
Unfair Dismissal – Constructive dismissal
Gender reassignment. Employer’s lack of knowledge. Meaning of ‘treats’ (SDA s2A(1)(a).
Constructive dismissal – . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Transco Plc v O’Brien CA 7-Mar-2002
The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before . .
Cited – GAB Robins (UK) Ltd v Triggs CA 30-Jan-2008
The claimant had been awarded damages for unfair constructive dismissal. The employer appealed an award of damages for the period prior to the acceptance by the employee of the repudiatory breach.
Held: Where a claimant’s losses arose before . .
Cited – Howard v Pickford Tool Co Ltd CA 1951
An unaccepted wrongful repudiation that is not in itself a breach does not give rise to a right in damages. Unless and until the repudiation is accepted the contract continues in existence. Asquith LJ said that an unaccepted repudiation is ‘a thing . .
Cited – Pederson v London Borough of Camden CA 1981
Whether an employer’s behaviour amounts to a fundamental breach of the employment contract is essentially a question of fact for the tribunal. . .
Cited – Roberts v West Coast Trains Ltd CA 16-Jun-2004
The employee had been dismissed. He began a claim for unfair dismissal, but also appealed within his employers’ procedure, accepting a demotion. The tribunal then found that he had not been dismissed.
Held: There had been no dismissal. Had he . .
Cited – W E Cox Toner (International) Ltd v Crook EAT 1981
In a case of constructive dismissal, the ordinary contractual rule applies; the wronged party may give the other party an opportunity to remedy the breach. In doing so he does not waive the breach and thereby affirm the contract.
Cited – Dobie v Burns International Security Services (UK) Ltd CA 14-May-1984
The employee worked as a security officer for the appellant, which was in turn employed by the respondent to provide security for an airport controlled by the Merseyside City Council. The Council had the right of approval of any employee of the . .
Cited by:
Appeal from – Buckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 26 July 2022; Ref: scu.346166