Nicola Mullineux, Senior employment specialist for Peninsula, reviews the decision in three cases concerning constructive dismissal, unfair dismissal and worker status
Western Excavating (ECC) Ltd v Sharp 1978 ICR 221 CA This case, Western Excavating v Sharp, is the leading case on the subject setting out the test for a good constructive dismissal claim.
‘Constructive dismissal’ is the label given to the situation where an employee resigns (so there is in fact no actual ‘dismissal’ that takes place) when the employee feels he has no other alternative. It usually results from actions of the employer which the employee feels are a fundamental breach of contract to which there can be no other alternative but to resign. The employee has to show that the employer is guilty of conduct going to the root of the contract of employment (i.e. not a minor breach). The breach can be an actual breach of contract or a breach of an implied term e.g. support, payment etc. If the employer has committed this breach, the employee is entitled to treat himself as
discharged from any further performance. Mr Sharp asked for three hours off one afternoon but this was refused. He went anyway. He was dismissed the next day but, on review, this sanction was revoked and replaced by five days’ unpaid suspension. Sharp asked for an advance in holiday pay but this was refused, as was a request for a loan. He then resigned. Sharp claimed constructive dismissal but was not successful. The court looked at whether any of the employer’s actions could be deemed to have been in breach of the contract of employment, and found that they could not. The case determined that, in order to claim constructive dismissal, the employee must establish that: l there was a fundamental breach of contract on the part of the employer l the employer’s breach caused the employee to resign, and l the employee did not delay too long
...SHOW THAT THE EMPLOYER IS GUILTY OF CONDUCT GOING TO THE ROOT OF THE CONTRACT OF EMPLOYMENT (I.E. NOT A MINOR BREACH)
40 PayrollProfessional
before resigning, thus affirming the contract and losing the right to claim constructive dismissal
If an employee were to delay before resigning, it may be seen by the tribunal that it was not a resignation in resistance of the act relied on by the employee. Alternatively, the tribunal may decide that the fact that the employee remained in employment for some time after the ‘breach’, indicates that the employee cannot have deemed it sufficiently serious as to terminate the employment. A claim for constructive dismissal will be made to the tribunal as a claim for unfair dismissal, and carries the same compensatory award e.g. maximum one year’s salary, subject to an overall cap of £74,200 currently.
The Manchester College v Hazel and Another UKEAT/0642/11/RN Both claimants had their employment transferred to The Manchester College in 2009 upon successful tender for offender learning contracts. They both worked throughout their employment as academic staff at HM Prison Elmley. As a result of a review in the first quarter of the offender learning contracts, hidden costs were discovered which had not been
HRfocus
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56