Staff do not have to resign at the first sign of trouble to claim constructive dismissal, the EAT has ruled.
The case of Abbey National v Robinson, EAT, 20 November 2000, has added a whole new dimension to the law relating to constructive dismissal. In certain circumstances, an employee is now entitled to claim constructive dismissal almost a year after the breach of contract by the employers.
Constructive dismissal has always been a potent weapon in an employee's arsenal, enabling such an employee to take the initiative and manage his or her own exit policy. Section 95(1)(c) of the Employment Rights Act 1996 states that there is a dismissal where the employee terminates the contract "in circumstances in which (the employee) is entitled to terminate it without notice by reason of the employer's conduct".
For the purposes of section 95(1)(c) such conduct must involve a repudiatory breach of contract by the employer and the employee must react immediately or as soon as possible thereafter. Failing this, he or she may be deemed to have waived the repudiatory breach and affirmed the contract, thereby losing the right to claim constructive dismissal.
Facts of the case
From 1996 onwards, Robinson was repeatedly bullied and harassed by her line manager, resulting in a formal complaint in April 1997. In credit to Abbey National, the complaint was investigated and disciplinary action was taken against the manager concerned, the intention being to move the manager into another department.
In June 1997, however, while Robinson was on sick leave as a result of stress caused by the manager's actions, she was informed that the manager was not to be moved. She attended a meeting in August 1997 to discuss her return to work but was offered no alternative employment and consequently remained disillusioned, frustrated and unwell resulting in a further period of sick leave.
Almost a year later, a further meeting was held after which Robinson concluded that she was never going to be offered an alternative position by Abbey National. After receiving two letters from Abbey National's personnel department, one offering her alternative employment and one in- forming her that it was no longer