UNFAIR DISMISSAL – Constructive dismissal
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
The Employer Appellant closed a lorry depot and asked the Employee Claimant lorry driver to move to another depot. He refused and took out a grievance. The employer found a new place for him to keep his lorry which was closer to home and generally acceptable to him but also said that as a ‘quid pro quo’ he should sign a new standard contract of employment. He indicated he would not sign the new contract and the employer said he could carry on working (from the new place) on the old contract for three months while the new terms were discussed; he agreed to that proposal. A month later he resigned saying that the terms and conditions associated with the new place were unsuitable. The Employment Judge expressly found that he was prepared to work from the new place.
The Employment Judge found that (a) the requirement to move workplace may not be a fundamental breach of the employment contract but that with the new contractual terms it amounted to a fundamental breach of contract, (b) the Claimant had resigned in response to the breach making it clear that he could not accept the new terms, (c) there was accordingly a constructive dismissal, and (d) the dismissal was by reason of redundancy (i.e. because the employer had ceased to carry on business at the closed depot) and fair, so that (e) the Claimant was entitled to a redundancy payment.
In reaching conclusions (a) and (b) the Employment Judge had not taken into consideration the fact that the Claimant had agreed to work for three months while discussing the new terms: this fact may have led to a conclusion that there was no outstanding breach of contract in relation to the new terms at the time of the resignation and/or impacted on the finding that he resigned in response to any breach. In reaching conclusion (d) she had failed to consider whether the main reason for the constructive dismissal she had found was the requirement to work under new terms rather than the closure of the depot (which was arguably merely the occasion giving rise to the attempt to impose that requirement) and had simply elided the two issues.
Appeal allowed and the whole claim remitted to a new Employment Tribunal. It was recognised that this might result in a worse outcome for the employer, who may be found to have constructively dismissed the Claimant ‘for some other substantial reason’ but unfairly.
Citations:
[2017] UKEAT 0150 – 17 – 0911
Links:
Jurisdiction:
England and Wales
Employment
Updated: 02 April 2022; Ref: scu.601919