Critical Evaluation the Remedies of Constructive Dismissal - Essay Example

148525     Constructive dismissal is where the employee leaves their employment because of the behaviour of their employer. This could happen where the employer makes the employee’s life very difficult so that they feel they cannot remain in their employment any longer. There are a number of ways in which the employer might have acted unreasonably such as not supporting the managers in difficult work situations1, harassing2 or humiliating staff, particularly in front of other less senior staff, victimising3 or targeting particular members of staff and changing the employee’s job content4 or terms without consultation5. Other factors that might trigger constructive dismissal are making significant changes in the employee’s job location at short notice, falsely accusing an employee of misconduct6 such as theft or of being incapable of carrying out their job7 and excessive demotion8 or disciplining of employees. Those claim constructive dismissal are expected to have resigned soon after the incident happened that forced them to resign. The court in Courtaulds Northern Textiles Ltd v Andrew9 made the point that ‘An employer must not, without reasonable or proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employee’. UK Legislation defines constructive dismissal under the Employment Rights Act 1996 s95(c) as (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employers conduct. In a guide published by the Department of Trade and Industry on Employment Policy and Legislation 6 Jan 2007 guidance is issued to employers on ways in which dismissal should be conducted so that claims of unfair dismissal or constructive dismissal cannot be brought by employees10. Those who can constructive dismissal are also entitled to claim for unfair dismissal and frequently someone alleging constructive dismissal will also bring an action for unfair dismissal. For a tribunal to agree that an employee has been constructively dismissed the employers action has to be such that it can be regarded as a significant breach of the employment contract indicating that he or she intends no longer to be bound by one or more terms of the contract: an example of this might be where the employer arbitrarily demotes an employee to a lower rank or poorer paid position. In order to claim constructive dismissal the employee must satisfy 4 elements. Firstly there must be a breach of contract by the employer. This may be either an actual breach or an anticipatory breach (e.g. the employer refuses to ensure the safety of your client by agreeing to transfer the harasser if your client returns to work). Secondly that breach must be fundamental, i.e. sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify her leaving. The third element is the employee must leave in response to the breach and not for a different, unconnected reason. And the last element is the employee must not delay too long in terminating the contract in response to the employers breach, otherwise she may be deemed to have waived the breach and agreed to vary the contract. A fundamental breach was described by Lord Denning in Western Excavating v Sharp11 as conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer wishes to be bound by one or more of the essential terms of the contract. Within the workplace there are implied terms in every employment contract. In respect of bullying or harassment in the workplace there is an implied duty to maintain trust and confidence, to provide reasonable support and to provide a safe system of working. If the employer fails to take a complaint seriously where one of the aforementioned occurs and the employee resigns there could be a claim for constructive dismissal. This was illustrated in Morrow v Safeway Stores12 where the Employment Appeal Tribunal (EAT) held that if there has been conduct by the employer likely to destroy or seriously damage the trust and confidence relationship this will mean, inevitably, that there has been a fundamental breach going to the root of the contract and entitling the employee to resign and claim constructive dismissal. No distinction can be made between degrees of seriousness of the breach of this implied term. Similarly in Whitehead v Isle of White NHS Trust13 the claimant who was a paramedic of an ambulance crew was abused and stalked by a colleague with whom she had previously had a relationship. Her employer considered her up front about sexual relations and able to cope with the harassment.  The ET said that it wished to make it perfectly clear that nobody, whatever their behaviour, should be expected to be abused and frightened by the conduct of a colleague. This constituted a line beyond which every employee should reasonably expect protection.   If an employee fails to follow the correct grievance procedure before trying to bring an action for constructive dismissal the tribunal may well decide that a claim of constructive dismissal cannot be brought. In the case of Insitu Cleaning Co Ltd v Heads14 the court stated that the employers insistence upon an employee following the grievance procedure was not a breach of contract entitling her to claim constructive dismissal. The Employment Act 2002 has made it a direct requirement that all employers must have a disciplinary procedure in places that satisfies the requirements of the Dispute Resolutions Regulations 200415. Regulation 1 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 defines a grievance as being a complaint by an employee "about action which his employer has taken or is contemplating taking in relation to him". Under s6 of the regulation guidance is given to employees as to when they might be able to bring a grievance procedure against their employer16. Under the statutory dispute resolution procedures an employee is required to lodge a written grievance before bringing an Employment Tribunal claim under the Sex Discrimination Act or of unfair dismissal. There are limited exceptions to this rule including where the complaint is of harassment and the employee has reasonable grounds for believing raising a grievance would lead to further harassment. The case of Nottinghamshire County Council v. Meikle17 would seem to suggest that any grievance brought should include the action complained of as well as a grievance about the dismissal itself. Given that failing to raise a grievance when one should have been raised will lead to the employee losing the right to bring a claim to the s.32 (2) Employment Act 2002 the best practical advice is probably to err on the side of caution and file a grievance in relation to the resignation even if a grievance has already been filed in relation the act in response to which the employee is resigning. To claim constructive dismissal the employee does not have to have worked for the employer for a minimum period of time, however, if the employee wants to bring a claim for unfair dismissal at the same time then they must have worked a minimum of 12 months. Further disadvantages of claiming under unfair dismissal include a ceiling of £56,800 on (most) awards of compensation, where the effective date of termination of the contract was on or after 1st February 2005. For claims where it was between 1st February 2004 and 31 January 2005, the ceiling is £55,000. Other disadvantages are the unavailability of compensation for injury to feelings, and that even if there are circumstances amounting to a constructive dismissal; the dismissal is not necessarily unfair. The employment tribunal still has to go on to decide whether the employer acted reasonably in all the circumstances within the meaning of s.98 (4) (6) of Employment Rights Act 1996. A claim for unfair dismissal appeared to take into account injury to feelings in Johnson v Unisys Ltd18; however the House of Lords in Dunnachie v Kingston upon Hull City Council19 ruled that the "loss" recoverable in unfair dismissal cases is limited to financial loss and does not include compensation for injury to feelings. The time limit for filing a constructive dismissal claim under the unfair dismissal provisions in the Employment Rights Act 1996 is 3 months from the effective date of termination of the contract. In Cast v Croydon College20, the Court of Appeal said that the time limit for filing an ET1 for constructive dismissal under the Sex Discrimination Act 1975, as opposed to unfair constructive dismissal under the Employment Rights Act 1996, runs from the date of the breach of contract not from the termination of the employment. However, the Court of Appeal in Nottinghamshire County Council v. Meikle21said that the view expressed in Cast could not be agreed with. The act complained of in a case of constructive dismissal is the unlawful dismissal which is constituted by the termination of the employees employment when she accepts the repudiation by her employer, so the time for lodging a claim runs from the dismissal, not the breach of contract. It can be seen from the above that bringing a claim for constructive dismissal can be complicated and require a significant amount of proof that the employer has acted in such a manner as to make it untenable for the employee to continue working for the employer. Under unfair dismissal one of the remedies available is re-instatement. Obviously if the employee is claiming under constructive dismissal this is not a reasonable solution and so therefore in constructive dismissal cases the only remedy available is monetary compensation. Bibliography Berry, A, Dealing with your Dismissal in One Week, 2000, Hodder & Stoughton Inns of Court Law School, Employment Law in Practice, 7th Ed, 2006, Oxford University Press Painter, R & Holmes, A, Cases and Materials on Employment Law, 2006, Oxford University Press Rich, M, Edwards, I, Mead, H, Mead’s Unfair Dismissal, 1994, Sweet and Maxwell Department of Trade and Industry on Employment Policy and Legislation 6 Jan 2007 http://www.lawontheweb.co.uk http://www.journalonline.co.uk http://www.dti.gov.uk Table of Cases Bolton School v Evans [2006] EWCA Civ 1653 (2006) 103(46) L.S.G. 30 (2006) 150 S.J.L.B. 1532 Cast v Croydon College [1998] IRLR 318 Commotion Ltd v Rutty [2006] I.C.R. 290 [2006] I.R.L.R. 171 Copsey v WWB Devon Clays Ltd [2005] EWCA Civ 932 [2005] I.C.R. 1789 [2005] I.R.L.R. 811 [2005] H.R.L.R. 32 (2005) 155 N.L.J. 1484 Times, August 25, 2005 Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84, EAT Dunnachie v Kingston upon Hull City Council [2004] IRLR 727 Greenhof v Barnsley MBC [2006] I.R.L.R. 98 Insitu Cleaning Co Ltd v Heads [1995] IRLR Johnson v Unisys Ltd [2001] IRLR 279 HL Land Securities Trillium Ltd v Thornley [2005] I.R.L.R. 765 Lipscombe v Forestry Commission [2006] UKEAT 0191 London Borough of Lambeth & Ors v Corlett [2006] UKEAT 0396 Majrowski v Guys and St Thomass NHS Trust [2005] EWCA Civ 251 [2005] Q.B. 848 [2005] 2 W.L.R. 1503 [2005] I.C.R. 977 [2005] I.R.L.R. 340 (2005) 149 S.J.L.B. 358 Times, March 21, 2005 Independent, April 8, 2005 Mark Warner Ltd v Aspland [2006] I.R.L.R. 87 Morrow v Safeway Stores [2002] IRLR 9 Nottinghamshire County Council v. Meikle [2004] IRLR 703 Southampton City College v Randall [2006] I.R.L.R. 18 Spirit Group Ltd v Bell 2005 WL 1104128 2005 WL 1104128 Western Excavating v Sharp [1978] ICR 221 Whitehead v Isle of White NHS Trust, Southampton ET, 3101969/98 Table of Statutes Dispute Resolutions Regulations 2004 Employment Act 2002 Employment Act 2002 (Dispute Resolution) Regulations 2004 Employment Rights Act 1996 Sex Discrimination Act Read More