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Tribunal result could protect against constructive dismissal claims

21 October 2009

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Employers in the healthcare sector could have additional protection against claims of constructive dismissal from employees, according to an employment law specialist.

Michelle Bowen, Senior Solicitor with health and social care law firm Hempsons, said a recent employment appeal tribunal had decided that it was not necessary to determine whether an employer’s actions fell within the band of “reasonable responses” when determining whether there had been a constructive dismissal.

“Although the case was in the education sector – involving the resignation of a university professor over the remarking of examination papers – what the tribunal decided has implications for all employers,” said Ms Bowen.

“It ruled that the test for determining whether there has been a constructive dismissal does not need to take into account whether the employer acted reasonably at that stage.

“First, there should be an analysis of whether there has been a fundamental breach of contract and therefore dismissal. Then you have to decide whether the dismissal was fair and whether the employer acted within the band of reasonable responses.”

Although the tribunal confirmed that the university was in breach of contract in relation to a trust and confidence issue, it ruled that the breach was remedied by the enquiry report, which had upheld the professor’s complaint.

The tribunal had asked: “What more could be objectively expected of the respondent?” When the claimant resigned, his university was no longer in breach of contract, the tribunal decided, and therefore he was not dismissed.

“What this means for health and social care employers is that a fundamental breach can potentially be remedied so that there is no dismissal,” said Ms Bowen.

“Employers should always observe the contractual rights of employees and take the opportunity to remedy any breaches, but the reasonableness of the employer’s actions will not be taken into account at the stage of determining whether there is a constructive dismissal.

She added: “It is vital to consider and document all reasons for breaches and strictly follow all grievance procedures as even if there is a deemed constructive dismissal, fairness can be argued.”