constructive dismissal notes- liam

8/9/2019 Constructive Dismissal Notes- Liam

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Constructive Dismissal1

This occurs where the employee leaves the employment in response to the employers

conduct. This is treated as a termination of the contract by the employer both at common lawand under statute.

Two key ingredients:

1) The degree of conduct by the employer necessary to initiate the concept

2) The breach of contract by the employer must be a direct consequence of the

termination of the employment by the employee.

Locus classicus:

Rubel Bronze & Metal Co. v Vos 1!1"):

#c $ardie %: if the conduct of the employer amounts to a basic refusal to continue the servant

on the agreed terms of the employment then there is at once a wrongful dismissal and a

repudiation of the contract.

&t was thought especially after the introduction of the concept of unfair dismissal the test

would have shifted from one of repudiation of contract to one of whether the employer had

behaved reasonably or otherwise.

&n the early days of the concept' (udges argued that any unreasonable behaviour on the part of

the employer could form the basis of a constructive dismissal claim' but enning #*

decided the test was a contractual test in Western Excavating Ltd v Sharp1!+").

Western Excavating ECC! Ltd v Sharp1!+")

This restored that the matter was one of breach of contract , not whether you behaved

reasonably. -ere the employee was suspended without pay as a disciplinary sanction. s he

had no money' he asked his employer for his holiday pay' which was refused' and then asked

for a loan' which was also refused. -e then resigned' claiming constructive dismissal becauseof unreasonable conduct on the part of his employer. The $ held that there was no dismissal

and that he had resigned because the employer had committed no breach of contract.

/ord enning #* stated' 0"n e#plo$ee is entitled to treat hi#sel% as constructivel$

dis#issed i% the e#plo$er is guilt$ o% conduct 'hich is signi%icant breach going to the root o%

the contract o% e#plo$#ent or 'hich sho's that the e#plo$er no longer intends to be bound

b$ one or #ore o% the essential ter#s o% the contract. (he e#plo$ee in those circu#stances is

entitled to leave 'ithout notice or to give notice but the conduct in either case #ust be

su%%icientl$ serious to entitle hi# to leave at once.

1 https://www.gov.uk/dismissal/unfair-and-constructive-dismissal
https://www.gov.uk/dismissal/unfair-and-constructive-dismissalhttps://www.gov.uk/dismissal/unfair-and-constructive-dismissal


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or the purposes of determining whether conduct is repudiatory' it must ob(ectively evince an

intention by the employer no longer to be bound by the contract , that the employer no longer

intends to be bound by the contract.

Le'is v Motor'orld )arages Ltd 1!"3):

&n ecember 1!"1' the employer in breach of the employment contract' demoted the

applicant and reduced his pay. The employee accepted the breach and affirmed the contract

but over the following " months the employer persistently criticised him. 4ntil finally in

ugust 1!"2' he resigned and complained of unfair dismissal5 relying on the demotion and

the criticisms. The &ndustrial Tribunal dismissed the claim stating that he could not rely on

the demotion as he had affirmed the contract5 and in terms of the criticisms it was not such a

fundamental breach to entitle him to claim that he had been constructively dismissed. The $

allowed his appeal holding that the breach that had been affirmed by an employee could

nevertheless form part of a course of conduct (ustifying a claim for constructive dismissal. In

order to prove that he has suffered a constructive dismissal, an employee who leaves his

employment must prove that he did so as a result of a breach of contract by his

employer.

6evertheless the contract test has 7given in to some e8tent to the reasonableness principle by

the decision that one of the implied terms of a contract of employment is that 0the employer

will not without reasonable and proper cause conduct itself in a manner calculated or likely to

destroy or seriously damage the relationship of trust and confidence between employer and

employee. ,9oods v 9# $ar ervices /td 1!"1 &$* ;;; uch a breach will occur if the

effect of the employers conduct as a whole (udged reasonably and sensibly is such that theemployee cannot reasonably be e8pected to put up with it.

Thursday, November 21, 2013 Lecture 12

Constructive ismissal Cont!d"

t common law you did not have to give notice if you are leaving. There needs to be a

significant breach of contract by the employer.

#ust there be an intention to repudiate on the part of the employer$ %hat if the

employer is actin& under a mista'en view of the contract$ Is that repudiatory conduct$

onaldson #* inBridgen v Lancashire CC< 0the mere fact that a party to a contract takes a

view of its construction which is ultimately shown to be wrong does not of itself constitute

repudiatory conduct. &t has to be shown that he does not intend to be bound by the contract as

properly construed. 6ow =biter)

*inancial (echni+ues v ,ughes< where Templeman /% as he then was had cautioned thusly'

0if a party to a contract has a plausible but mistaken view of his rights under that contract he

may not insist on that view and his insistence can amount to a repudiation.

ome cases of repudiation:


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Pay: >enerally a reduction in pay or refusal to pay will constitute a repudiatory

breach of contract.L-"( /01! Ltd v )reenidge?1!!@

took > off the pay


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areas were set aside in the premises where smoking was permitted. uring 1!!1' the

employers decided to prohibit smoking in the hospital and it was implemented on 1 st

%uly 1!!1. #rs. rydon resigned 12 %uly 1!!1. he complained that she had been

constructively dismissed and the introduction of the smoking policy was a breach of

her contract of employment. t the &ndustrial Tribunal it was found that there was noimplied term to the effect that she was allowed to smoke at work and it re(ected her

submission that the employers were in breach of the implied term of mutual trust and

confidence. The FT dismissed the appeal. The introduction of the no smoking policy

did not constitute a breach of her contract of employment.

constructive dismissal notes- liam

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