Case Ref: 1.3/ March 2004
Summary of case
Member lodged a complaint of bullying and harassment against a manager. She complained of suffering from stress and applied for other positions outside of her current employer. She secured a conditional offer, subject to her new employer seeing copies of sickness records and previous staff reports.
The new employer then said that on the basis of contact made with the member's current employer "they could no longer offer her a position". There was also contact made by the member's Personnel Manager who indicated she could not be released until the end of the year as investigations into the complaints she had made needed to be concluded.
Advice was sought on the reasonable prospects of success should the member resign and claim constructive dismissal in the Employment Tribunal.
Key advice provided by Thompsons
The key aspect of the advice letter received from Thompsons is the comment made in relation to the conditions which need to be met in order to win a successful constructive dismissal claim.
Of particular importance is the following extract from the advice letter:
"It is an implied term in every contract that there will be "mutual trust and confidence" between the employer and employee. Where that trust is broken, an employee can resign and claim constructive dismissal. On the facts of this case it is clear that there has been a breach of mutual trust and confidence in that Miss X's employers have deliberately sought to prevent her from transferring to another department by delaying in releasing her from her position as Administrative Officer.
"However unfortunately I have not had sight of the terms relating to notice periods in Miss X's Contract of Employment and as such I am not able to fully consider this position as it may be the case that Miss X is required to give ten weeks notice in any event.
"For an employee to show on the balance of probabilities that an employer has committed a breach that would entitle them to resign, there are four conditions which need to be met (Western Excavating (ECC) Limited -v- Sharp ):
i) There must be a breach of contract by the employer;
ii) The breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify leaving;
iii) The employee must leave in response in to the breach and not for some other unconnected reason;
iv) The employee must not delay too long in terminating the contract in response to the employer's breach, otherwise they may be deemed to have waived the breach and agreed to vary the contract".
In the context of this particular case the advice letter went on to say:-
"Constructive dismissal cases are very difficult to win. The test of what constitutes a serious enough breach of contract to warrant dismissal is a high one. In the circumstances I think that Ms X may have difficulty in persuading the Employment Tribunals that the actions of her employer are sufficiently serious, particularly as they may be able to argue that she was required to provide them with 10 weeks notice in any event.
"Furthermore I believe that she may have difficulty in persuading the Employment Tribunals that she has not delayed in resigning as a consequence of the breach and it may be argued that she is resigning for another reason particularly as it is about 2 months since the breach.
"Furthermore if at the time of her resignation she has secured another job, this will weaken her case further. If Ms X is successful in pursuing her case for constructive dismissal, she will receive very little in the way of compensation, she will only be entitled to her basic award, plus 50% of her basic pay for the number of weeks that she has been out of work.
It must also be remembered that any benefits she is in receipt of will be deducted from any award she may receive. Therefore in the circumstances the costs of pursuing the case may well outweigh the compensation received by Ms X.
Legal department comment
The advice from Thompsons highlighted above confirms the experience of our officials that constructive dismissals are very difficult to win. In general terms we should work hard to persuade members not to resign and seek redress through the Tribunal, but use all internal avenues to address any grievances. Certainly no claim should be pursued without first weighing up legal advice received on any particular potential claim.