In summary of the guidance that the Tribunal draws from the standard authorities when an employee relies not upon a breach of an express contractual term but on a breach of the implied term of trust and confidence, the Tribunal will look at following key questions in relation to the complaint of constructive unfair dismissal:
Did the actions of the respondent either separately or cumulatively amount to a breach by the respondent of the term of trust and confidence that is implied into all contracts of employment
Did the respondent conduct itself in a manner that was calculated or likely to destroy or seriously damage the relationship of mutual confidence and trust between it and the employee
Did the employer have reasonable and proper cause for doing so?
Was the breach a fundamental one: i.e. was it so serious that the claimant was entitled to treat the contract of employment as being at an end?
Did the claimant, at least in part, resign in response to the breach
Was the breach of contract a reason for the claimant’s resignation?
Did the claimant affirm the contract before resigning:
Did the claimant’s words or actions show that she chose to keep the contract alive even after the breach?
If the claimant was dismissed, what was the reason or principal reason for the dismissal: i.e. what was the reason for the breach of contract?
Was that reason a potentially fair reason by reference to section 98(1) of the Act?
By reference to section 98(4) of the Act, did the respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the claimant?
The burden is always on an employee to prove that there was a repudiatory breach of contract. This is why I always advise all employees to carefully consider their actions before making decision to assert their right of constructive dismissal.
In this article you will find the case of Ms MA Stevenson against Citizens Advice County Durham. Mr Stevenson was being bullied by a colleague in her opinion but it was decided otherwise and classed as disrispectfull behavious. Her grievance was partly upheld, she ten asserted certain actions from her employer, they were not taken, she made constructive dismissal and that was her big mistake. Judge decided that her expectation from the employer to dismiss her perpatrotor, refusal of mediation escalted the issues but the employer did not breach the implied trust.
Key points of the Judgment
The burden is on the claimant to prove a repudiatory breach of contract, assessed objectively.
Ms Stivenson reactions caused matters to escalate after the 31 July email, but none of the claimed breaches were fundamental.
This case was not pleaded as a last straw dismissal, and no evidence supports that.
The breach must be the effective cause of resignation. The respondent offered support, mediation, and time off, all refused.
The claimant's extreme reaction to the ultimatum was disproportionate, considering the roles overlap.
The respondent took effective steps to address grievances, which were agreed upon by the claimant.
The 4 November 2019 issue was not mentioned in the second grievance and is not a breach.
Assertions about NC were vague, with no evidence of undermining.
The January 15, 2020 issue was a minor workplace matter, supported by staff opinions.
The grievance process was fair and well-based, not constituting a breach.
The claimant refused resolution options, leading to an impasse.
The claimant resigned due to dissatisfaction, not a fundamental breach.
The claimant unreasonably delayed resignation and affirmed the employment contract.