Section 95(1)(c) of the Employment Rights Act 1996 states that there is a dismissal where the employee terminates his or her 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), any such conduct must involve a repudiatory breach of contract by the employer to which the employee must react immediately, or as soon as possible thereafter. Any failure to do so may mean that the employee could be deemed to have waived the repudiatory breach and affirmed the contract (thereby losing the right to claim constructive dismissal).
Managers must beware, though, as a recent case (Abbey National versus Robinson) has shown that an employee is now entitled to claim constructive dismissal almost a year after any proven breach of contract by the employer.
The facts of the case
From 1996 onwards, Robinson (the employee) was repeatedly bullied and harassed by her line manager, resulting in a formal complaint in April 1997. In credit to Abbey National, Ms Robinson's complaint was investigated and disciplinary action taken against the manager concerned (in real terms, this should have meant moving the manager to another department). However, in June 1997 – while on sick leave – Ms Robinson was informed that the line manager wouldn't be moved after all.
At a meeting that August, a discussion concerning Ms Robinson's return to work elicited no offer of alternative employment. Consequently, she remained disillusioned and unwell, leading to a further period of sick leave. Almost a year later another meeting took place, at which point Ms Robinson concluded that she'd never be offered alternative employment in another department.
Letters from the Personnel Department followed (one offering alternative employment, the next stating that it was no longer available). This was the 'last straw', and Ms Robinson resigned in July 1998 – subsequently bringing a claim for unfair dismissal.
Her employer alleged that such a claim should have been made a year before. This argument was based on existing authorities at the time, including the leading case of Western Excavating versus Sharp in which the presiding Court of Appeal held that any resignation on the grounds of constructive dismissal must take place soon after the conduct complained of, while any delay could constitute an affirmation of a given contract.
EAT's finding: conduct over time
EAT has found that Abbey National's failure to move the manager concerned – and to offer Ms Robinson alternative employment – was the start of a breakdown in trust and confidence that led to her resignation.
The EAT confirmed the Court of Appeal's finding in another case (Lewis versus Motorworld Garages) that a breakdown in trust and confidence due to the employer's conduct may be established not only on the basis of a single event, but on a course of conduct over a period of time at the end of which it is reasonable for the employee to resign and claim constructive dismissal.
Accordingly, the EAT held that Ms Robinson had not affirmed the contract since the beginning of the breakdown in the employment relationship, or between the receipt of the two letters in early July and the date of her resignation on the 26th.
A lasting legal implication
This decision is important for security companies insofar as the Courts have shown willing in the context of a claim for constructive dismissal to have a regard to the employment relationship as a whole – from the commencement of the breakdown of the relationship through to the 'last straw'.
To this end, security officers will no longer be forced into deciding whether or not to 'jump ship' and claim constructive dismissal at the first sign of a breakdown in trust and confidence with their employer for fear of discovering that any delay would constitute an affirmation of the contract. They can now afford their bosses time to repair any damage done, and to make appropriate amends.
Any failure on the part of the guarding contractor to take such steps will indeed constitute the 'last straw'.
Source
SMT
Postscript
Mark O'Neil is senior associate at City-based law firm Sinclair Roche & Temperley, specialising in employment law as it relates to the security sector