Laura Kearsley, Partner and Solicitor at Nelsons
In recent months, hundreds of businesses have formally implemented a hybrid-working approach, allowing employees to work both from home and from the office.
Despite the fact that this will be viewed by many as a positive change to ways of working, it is important for employers to consult their employees before making any significant changes to the terms and conditions of employment. If these contractual changes are not agreed, business owners open themselves up to potential resignations and claims for constructive dismissal, as Laura Kearsley, Partner and Solicitor specialising in Employment Law at Nelsons, discusses.
What is constructive dismissal?
While other kinds of dismissal are instigated by employers, constructive dismissal occurs when an individual is forced to leave their job as a result of the way they have been treated at work. Although there is no actual dismissal by the employer, the end result is still the same as though a sacking has taken place.
In order to be successful in a constructive dismissal claim, it is not enough for the ex-employee to show merely that the employer has behaved unreasonably. There must be a fundamental breach of either an express contractual term, or an implied term of the contract such as the duty of “trust and confidence”, such as:
- A serious breach of contract, for example, the employer not paying the employee, or suddenly demoting them for no reason;
- An employer forcing an employee to accept unreasonable changes to their conditions of employment without their agreement, for example, suddenly telling the employee to work in another city or town, or making them work night shifts when they are contracted to only work in the day;
- Bullying, harassment or violence by work colleagues; or,
- Being forced to work in dangerous conditions.
The employer’s breach of contract may be one serious incident or a series of less important incidents that are serious when taken together.
Who can make a claim?
There are two main criteria that need to be met in order for an employee to bring a constructive dismissal claim against their former employer. These are:
- They have been employed continuously for a minimum of two years prior to the end of their employment; and,
- There has been a fundamental breach of the employment contract by the employer, which has then directly resulted in the employee resigning from their job.
Constructive dismissal in practise
A recent case, Mrs C A Hobbs v Avon Care Homes Ltd, saw the claimant, Mrs Hobbs, resign from her post as a secretary at a care home, on the grounds of her employer’s conduct, and claim that she had been constructively dismissed.
Mrs Hobbs had been assisting the managing director, Mrs Bila, and the regional manager, Mrs Rea, with recruitment. She attended an interview to take notes while Mrs Rea undertook the interview. Although the candidate was good and Mrs Rea was impressed by her, she voiced concerns about how Mrs Bila would react to the candidate being black because of her prejudices about black people working in the care sector. Subsequently, Mrs Bila did voice that she did not want to employ this candidate because she was black, but the claimant was instructed to set up a further interview.
Mrs Hobbs felt that she could no longer work for Avon Care Homes and did not want to set up the interview knowing that the candidate was not going to be appointed on racially motivated grounds. She left the office later that day and resigned with immediate effect by email the following day.
The tribunal heard that she was seriously offended and upset at being asked by her boss to be complicit in discriminatory work practices, while the employer argued that Mrs Hobbs resigned prematurely and should have raised a grievance about her concerns.
The Employment Tribunal ruled that Mrs Hobbs was reasonable in believing that the situation could not be resolved, especially as her grievance concerned the person at the head of the business.
Seek specialist advice
While the criteria to make a claim may seem like simple tick boxes, constructive dismissal is a complicated area of law, as it’s often hard to prove that an employer’s behaviour was so bad that it forced someone to leave their job and/or that this was the reason for leaving. In addition, decisions have to be made quickly as potential claims can be compromised if an employee delays too long in resigning. Therefore, it’s crucial for people to seek specialist legal advice as soon as they believe they may have a claim.
For more advice on constructive dismissal, please visit: www.nelsonslaw.co.uk/employee-rights/claiming-for-constructive-dismissal/.
