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When is a Dismissal Not an Actual Dismissal: When It’s a Constructive Dismissal
Adrian Fryer
Constructive unfair dismissal is a strange beast. It is an unfair dismissal but there is no actual dismissal involved at all. It occurs when an employee resigns in response to their employer’s conduct. The employer’s conduct must be such that it amounts to a repudiatory breach, a breach going to the root of the contract. If it does, then the resignation is treated, in law, as a dismissal, and the employee can claim unfair dismissal.
One of the key requirements for constructive dismissal is that the employee must not have affirmed the employment contract and accepted the breach before resigning.
This is not something which is easy to assess, but tribunals look at factors such as the amount of time which elapses between the breach and the resignation and whether, in the intervening period, the employee conducted themselves in a way which indicated that they had accepted the breach.
The issue of affirmation was front and centre in the recent Employment Appeal Tribunal case of Barry v Upper Thames Medical Group. Dr Barry was told by the Trust that she would not be paid sick pay. This was a breach of her employment contract. Six months later, she resigned. She claimed constructive dismissal, relying on this breach. The Trust argued that by delaying for six months between becoming aware of the breach and resigning, Dr Barry had affirmed the employment contract and accepted the breach.
The Employment Appeal Tribunal did not agree. Even though there had been a six-month delay, there had been no affirmation. The EAT pointed to the fact that Dr Barry didn’t work at all following the breach and actively disputed the breach throughout the six-month period. All of this pointed against her affirming her employment contract.
This case is a useful reminder to employers that a delay in resigning, in and of itself, does not mean that a breach of contract has been affirmed. If the employee continues to work ‘under protest’, then the breach may well continue. If an employer is faced with a similar situation, then simply sitting on the issue and hoping it will go away through the passage of time is unlikely to work.
Employers should engage with the employee, acknowledge mistakes, and attempt to reach a mediated agreement to move forward. Document all such discussions – especially if you might want to rely upon them as evidence of affirmation by the employee.