Weekly dilemma: unfair constructive dismissal

Q A member of staff at my design agency wants to leave because of the conduct of another employee, but says she will sue me for unfair constructive dismissal. Would she have a case?

A Constructive dismissal is a type of unfair dismissal claim which can be brought by an employee if they claim that their employer has committed a serious breach of their contract of employment (known as a repudiatory breach).

The employee must show they left their employment because of that breach, and that they have not waived the breach in any way. The action of the employer complained of is often referred to as being “the last straw” in this type of case.

An employer can be held liable in such cases not only if they breach an express term of an individual’s contract of employment, but also if they breach an implied term, for instance if they act in such a way that it destroys the relationship of trust and confidence between the employer and their employee.

Examples of breaches of contract that an employee can rely on in bringing such a claim include an act of discrimination, a reduction in pay or a unilateral variation of terms and conditions.

In your situation, the validity of your employee’s case will very much depend upon the conduct of the employee she is complaining about, and the action you have taken as an employer in response to that conduct.

For example, if she has raised a formal grievance in relation to this individual, have you reviewed their conduct, and responded to her grievance in accordance with the ACAS Code, acting reasonably throughout?

Ultimately, an employer can be held vicariously liable for the acts of their employees and as such, you should ensure that you act reasonably in all circumstances and take appropriate action where an individual complains about a colleague’s conduct.

As your employee has told you she intends to make such a claim, you should certainly make attempts to resolve the situation by meeting with her to discuss the difficulties she is facing, and attempt to find a solution to her problem.

If you simply allow her to leave now and take no further action, an employment tribunal is likely to find you should have taken steps to prevent the claim from being made by considering her concerns at this stage.

Claire Reddington, solicitor, Davis Blank Furniss

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