Constructive dismissal - what are the hurdles facing claimants?

Posted On: 29 January 2009

Author: Christian Marney

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Constructive Dismissal
Christian Marney, Advocate, 27th January 2009

Scope of Discussion
Looking at two areas this evening:
• First – recent cases on the correct approach to assessing the employers conduct. Looking at what is to be taken from those cases and what implications they may have for the future development of the law in this area.
• Second - looking at remedy in cases where there has been a course of conduct leading to psychiatric injury which pre dates the resignation.

The resurgence of the band of reasonableness test
2 recent cases in which the employers conduct has been assessed with reference to the "band of reasonableness" test
• Abbey Natiional PLC v Fairbrother EAT 12th January 2007 UKEAT/0084/06/RN
• Claridge v Daler Rowney Ltd [2008] ICR 1267

Setting the Decisions in Context
The Western Excavating Test
• "If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.  If he does so, then he terminates the contract by reason of the employer's conduct.  He is constructively dismissed.
• The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract."
• Western Excavating (EEC) v Sharp [1978] ICR 221 (per Lord Denning MR at 226)
• This is a statement of the "contract test". In formulating the test that way Lord Denning expressly rejected "the unreasonableness test".

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