Case Ref: 4.6/ August 2004
Summary of case
The member Ms X lodged a complaint about alleged bullying and harassment by a team leader. The complaint was investigated but was not upheld. Ms X believed the complaint had not been investigated properly and she resigned.
Advice was sought on the merits and prospects of pursuing sex discrimination and constructive dismissal. As a result of initial advice received to pursue an ET claim legal representation was provided.
Key advice provided by Thompsons
Part of the advice provided by Thompsons centred around the potential for successfully pursuing the claim of constructive dismissal.
Apart from general advice on the factors which will need to be demonstrated in order to win a claim, the solicitor provided specific advice on the difficulties which Ms X would encounter in convincing the ET that the respondents had committed breaches of contract. The key comments on these matters were as follows:
"For a claim of constructive dismissal to succeed, you will need to show that the effective cause of your resignation was the Respondents' breaches of contract and not for some other reason. You will need to show that you resigned because of the breaches of contract and not because you have found a better paid job. The following 2 cases illustrate the problems:
"In Jones -v- F Sirl & Son (Furnitures Ltd) 1997 [IRLR 49/EAT] Ms Jones had worked for a small family business as manageress for almost 30 years. Her hours of work, pay, petrol allowance and pension was cut due to the recession. Another manager was appointed. Ms Jones was then stripped of significant areas of her responsibilities.
"A few weeks later she was offered a job at another company. She accepted the job and claimed constructive dismissal. The Employment Tribunal found that although the employers were in fundamental breach of contract, there was no constructive dismissal because Ms Jones's resignation had been caused by the offer of another job rather than by the employer's fundamental breach of contract.
"The Employment Appeal Tribunal (EAT) overturned the decision, holding that the Tribunal should have examined whether or not the employer's breach was the "effective cause" of the employer's resignation. In the EAT's view "whilst the breach must be an effective cause of the resignation, it does not have to be the sole cause, and there can be a combination of causes provided the effective cause for the resignation is the breach".
"The EAT decided that the employer's fundamental breach, rather than the offer of a new job, was the effective cause of resignation. In the case of O'Grady -v- FT Financial Management Group Services Ltd EAT 1161/94 Mr O'Grady gave evidence to a Tribunal that even though his employers were in fundamental breach of contract, he would not have left his employment but for the fact that he had been offered a new job elsewhere. The EAT upheld the Tribunal's decision that the cause of Mr O'Grady's resignation was the offer of a new job and not his employer's fundamental breach of contract. Therefore, Mr O'Grady's claim failed."
Legal department comment
The above comments should be read in conjunction with case notes on case 1.3/ March 2004. These notes confirmed what an applicant will need to show in order to succeed in a claim of dismissal.
The comments highlighted above build on that advice and hopefully will further aid reps and officials in terms of advice to be provided and issues to be considered before any decision is made regarding representation for a constructive dismissal claim.
Updated 29 Jan 2017