Two recent constructive dismissal tribunal cases illustrate the need for employers to be highly vigilant around workplace behaviour and to address grievances promptly. Nick Hurley and Erin Hughes at law firm Charles Russell Speechlys look at the rulings

Constructive dismissal, an often talked about but misunderstood area of employment law, continues to challenge HR professionals and business leaders alike. This concept, where an employee resigns due to a fundamental breach of contract by their employer, underscores the importance of maintaining trust and confidence within the workplace. Two recent employment tribunal cases: Mr N Walker v Robsons (Rickmansworth) Limited and Mrs S Hamilton v Epsom and St Helier University Hospitals NHS Trust, highlight how seemingly minor workplace behaviours can escalate into significant breaches, leading to constructive dismissal claims.

Constructive (unfair) dismissal arises when an employee resigns due to a fundamental breach of contract by their employer. This breach can either be of an express term or an implied term but typically, and in these cases, involve a breach of the implied term of trust and confidence.

Tribunal cases

Postman working second job while sick was unfairly dismissed

Engineer awarded £25k after employer ‘trespassed’ his home

Estate agent constructively dismissed after desk move ‘demotion’

Unfairly dismissed Edinburgh professor awarded £1m

The breach can be a one-off incident or the “last straw” in a chain of events. Under this term, the employer must not “without reasonable and proper cause” act in a manner calculated or likely to destroy or seriously damage the mutual trust and confidence between employer and employee.

The distinction between a breach of trust and confidence and unreasonable conduct on the part of an employer, while real, is often a fine one. It must be demonstrated that the employer’s conduct was so serious that it was a repudiatory breach of the contract of employment, that the employee resigned due to this breach, and the employee did not affirm the contract before resigning.

If the employee in question meets the eligibility criteria for unfair dismissal (currently set at two years’ continuous service for non-automatic unfair dismissals), they will generally be treated as unfairly as well as constructively dismissed.

In Hamilton, the claimant resigned because of unresolved workplace issues and inadequate support. In Walker, the claimant resigned after a demotion and poor communication. So, what went wrong in these cases?

Mrs Hamilton claimed constructive unfair dismissal after resigning from her role as a diabetes specialist nurse. She alleged that her employer (an NHS Trust) had failed to address the behaviour of a colleague, Mr Nayeck. She claimed the Trust had not properly uphold her grievance about his behaviour and failed to implement the necessary safeguards in a timely fashion.

Formal grievance

Mr Nayeck’s behaviour towards Mrs Hamilton included several unpleasant actions: ignoring morning greetings from Mrs Hamilton, facing away from her during meetings, and stopping making tea for her while continuing to do so for other team members (thereby excluding her). Mrs Hamilton submitted a formal grievance relating to Mr Nayeck’s behaviour and how the Trust dealt with this, and she appealed the initial outcome of the grievance.

The appeal outcome provided for two sets of recommendations. The tribunal found that the Trust failed to appropriately address Mr Nayeck’s behaviour and did not implement the grievance appeal recommendations in a timely manner both of which constituted a breach of the implied term of trust and confidence. The tribunal concluded that the Trust’s conduct was likely to destroy or seriously damage the relationship of trust and confidence, she resigned in response to the breach and her claim of constructive unfair dismissal was therefore upheld. She was awarded £41,000 in compensation.

Separately, Mr Walker alleged constructive unfair dismissal and direct age discrimination against his employer, an estate agency. Mr Walker was told that he would be moving to another branch because the business had recruited someone into his role in his current branch, Rickmansworth. His replacement later left, and Mr Walker was asked to return to the Rickmansworth branch. Management decided Mr Walker would share the branch manager role but did not discuss this with him.

Told to sit at ‘the middle desk’

The other (more junior) branch manager sat at the back desk, which had “symbolic” and a practical significance and was where the branch manager had traditionally sat. Mr Walker was told to sit at a middle desk, which made it feel like a demotion. Mr Young also shouted at Mr Walker and made an age-related remark, threatening disciplinary action regarding the desk issue.

The tribunal found that Mr Walker was constructively dismissed due to a breach of the implied term of trust and confidence by the agency. This breach was caused by various actions, including changes to Mr Walker’s role and working conditions without proper communication and specifically being told to sit at the middle desk upon his return to the branch, which he perceived as a demotion.

The employment tribunal concluded that Mr Walker resigned in response to this breach. Although the claim for direct age discrimination was dismissed because the tribunal found no less favourable treatment based on age, it found for him on the constructive unfair dismissal claim. A separate remedy hearing will be listed to ascertain compensation.

These cases emphasise the importance of maintaining trust and confidence in employment relationships. Employers should be aware of any relationship issues in the workplace and:

• Act promptly and effectively in relation to grievances and ensure appropriate support mechanisms are in place for those affected;
• Have clear training, policies and disciplinary procedures in place to address poor workplace behaviour;
• Ensure transparent communication and respect for employees’ roles to maintain trust and confidence.

These are cautionary tales, albeit uncommon cases, which provide valuable insights for businesses and HR professionals into the risks of constructive dismissal claims. They highlight the critical role of employers in safeguarding the employment relationship by addressing grievances promptly and effectively.

Both underline the necessity for employers to be vigilant about workplace behaviours that could damage trust and confidence, and to implement clear policies and training to prevent such situations. By prioritising these aspects, employers can mitigate the risk of constructive (unfair) dismissal claims and maintain a harmonious and productive workplace environment.

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