Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Register
Log in
Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+

Personnel Today

Last straw over issue of constructive dismissal

by Personnel Today 13 Mar 2001
by Personnel Today 13 Mar 2001

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 available, she decided that this was the "last straw" and
resigned on 26 July 1998, bringing a claim for unfair constructive dismissal.

Abbey
National did not dispute the fact that Robinson was entitled to resign and
claim constructive dismissal but alleged that such a claim should have been
brought in August 1997 and not more than a year later. Such argument was based
on existing authorities at the time, including the leading case of Western
Excavating (ECC) v Sharp, CA 1978, ICR 221, in which the Court of Appeal held
that any resignation on the grounds of constructive dismissal must take place
soon after the conduct complained of and any delay could constitute affirmation
of the contract.

EAT’s
finding

The
Employment Appeal Tribunal found that Abbey National’s failure to move the
manager concerned and failure to offer Robinson alternative employment was the
start of the breakdown in the relationship of trust and confidence that
eventually led her to resign. Such breakdown continued throughout the following
year as a result of Abbey National’s unreasonable and insensitive treatment of
Robinson and culminated in the contradictory letters received from the
personnel department. 

Conclusion

Employees
will now not be forced to decide whether to jump ship and claim constructive
dismissal at the first sign of a breakdown in the relationship of mutual trust
and confidence for fear of a finding that any delay would constitute
affirmation of the contract, and can afford the employer the opportunity to
repair any damage done and make amends.

Failure
to take such steps by the employer will constitute the last straw. This is an
extremely important case in a familiar area of employment law.

By
Mark O’Neil, senior associate in employment law at Sinclair Roche &
Temperley, 020-7452 4224

Personnel Today
Personnel Today

Personnel Today articles are written by an expert team of award-winning journalists who have been covering HR and L&D for many years. Some of our content is attributed to "Personnel Today" for a number of reasons, including: when numerous authors are associated with writing or editing a piece; or when the author is unknown (particularly for older articles).

previous post
Are you a young turk or old fogey?
next post
Telecoms firms suffer from HR weaknesses

You may also like

Barrister wins gender critical belief discrimination claim

27 Jul 2022

‘Patchy’ mental health services failing ethnic minority communities

11 Jul 2022

Global study highlights hypertension treatment failings

8 Jul 2022

NICE sets out new guideline on managing depression

8 Jul 2022

Half of employees struggle to switch off on...

8 Jul 2022

Five steps for organisations across the globe to...

8 Jun 2022

The Search for Talent: Six Major Employer Pitfalls

24 May 2022

Grants scheme set up to support women’s health...

16 May 2022

How music can help to ease anxiety at...

9 May 2022

OH will be key to navigating ‘second pandemic’...

14 Apr 2022
  • 6 reasons why work-based learning is better than traditional training PROMOTED | A recent Fortune/Deloitte survey found that 71% of CEOs are anticipating that this year’s biggest business disrupter...Read more
  • Strengthening Scotland’s public services through virtual recruiting PROMOTED | This website is Scotland's go-to place for job seekers looking to apply for roles in public services...Read more
  • What’s next for L&D? Enter Alchemist… PROMOTED | It’s time to turn off the tedious and get ready for interactive and immersive learning experiences...Read more
  • Simple mistakes are blighting the onboarding experience PROMOTED | The onboarding of new hires is a company’s best chance...Read more
  • Preventing Burnout: How can HR help key workers get the right help? PROMOTED | Workplace wellbeing may seem a distant memory...Read more

Personnel Today Jobs
 

Search Jobs

PERSONNEL TODAY

About us
Contact us
Browse all HR topics
Email newsletters
Content feeds
Cookies policy
Privacy policy
Terms and conditions

JOBS

Personnel Today Jobs
Post a job
Why advertise with us?

EVENTS & PRODUCTS

The Personnel Today Awards
The RAD Awards
Employee Benefits
Forum for Expatriate Management
OHW+
Whatmedia

ADVERTISING & PR

Advertising opportunities
Features list 2022

  • Facebook
  • Twitter
  • Instagram
  • Linkedin


© 2011 - 2022 DVV Media International Ltd

Personnel Today
  • Home
    • All PT content
    • Advertise
  • Email sign-up
  • Topics
    • HR Practice
    • Employee relations
    • Equality, diversity and inclusion
    • Learning & training
    • Pay & benefits
    • Wellbeing
    • Recruitment & retention
    • HR strategy
    • HR Tech
    • The HR profession
    • Global
    • All HR topics
  • Legal
    • Case law
    • Commentary
    • Flexible working
    • Legal timetable
    • Maternity & paternity
    • Shared parental leave
    • Redundancy
    • TUPE
    • Disciplinary and grievances
    • Employer’s guides
  • AWARDS
    • Personnel Today Awards
    • The RAD Awards
  • Jobs
    • Find a job
    • Jobs by email
    • Careers advice
    • Post a job
  • XpertHR
    • Learn more
    • Products
    • Pricing
    • Free trial
    • Subscribe
    • XpertHR USA
  • Webinars
  • OHW+