Constructive dismissal: a legal point of view

by David Clifton of thePublican.com's legal team of experts from London solicitors Joelson Wilson​

Let's take a look at a situation that can often arise in an office environment, particularly when the general economic situation means that the company belt is being drawn tighter.​

Assume for a moment that there is a secretary in a company's administration department who does not appear to be coping very well with her work. She has been employed for a while but, as a result of inadequate staffing, a backlog of work has built up. Other members of staff are complaining that their typing is not being done.

The boss decides to have a chat with the secretary. He tells her about the problems being caused by the backlog and that she has to have it cleared within two weeks. She resigns. The boss has not dismissed her. As far as he is aware, he has not breached the terms of her employment. But could she bring a claim for constructive dismissal?

The answer is "yes". Constructive dismissal claims can be based not only on the breach of an express term of an employee's contract of employment but also on an implied term.

A term that an employer will not, without reasonable or proper cause, conduct himself in a way likely to destroy or seriously damage the relationship of trust and confidence between him and his employee will be implied into every contract of employment.

Expecting an employee to sort out a backlog of work that has developed through inadequate staffing without any extra help might well amount to a fundamental breach of this term and thus entitle the employee to claim constructive dismissal.

Other examples where an employer's conduct has amounted to such a breach include a failure to tell an employee about complaints made against her and thereby not allowing her the opportunity to answer those complaints.

In another case, failure to make adequate investigations into allegations of harassment resulted in a successful claim for compensation for constructive dismissal.

So an employer does not have to fall to the standards of David Brent of The Office fame to find himself on the receiving end of a claim for compensation for what really amounts to bad management practice.