Constructive dismissal cases

Senior leaders will know that an employee can claim 'constructive dismissal' as the result of the employer treating him/her in a way that shows that the employer has breached the essential trust and confidence that should exist between employer and employee.

In addition, the conduct of the employer does not have to be single act nor does the final act have to be particularly outrageous. It just can be 'the last straw'.

However, in a recent case (Wishaw and District HA v Moncrieff), the employment appeal tribunal (EAT) restated that the final act does to some extent have to be a breach of trust and confidence and that it must be of some weight. A communication that is only related in a limited way to a long series of breaches will not necessarily equal a last straw.

In the particular case, an employee who had been off work for a period, allegedly because of the employer's conduct, claimed that a letter from the employer warning that employment would be terminated if he did not return to work was 'the last straw'.

The tribunal took the view that it was perfectly reasonable for an employer to ascertain whether an employee who was long-term sick was fit to return to work. This could not be seen as a last straw action. In another case, the EAT ruled that the act of an employer could be 'cured', as the lawyers say, if the employer took steps to remedy the action that would amount to constructive dismissal.

In this case (Bournemouth University v Buckland), the grades of students at a university were overturned without reference to the professor who had originally made them. The EAT acknowledged that this was sufficient to constitute constructive dismissal.

However, the university set up an enquiry which ruled completely in the professor's favour and against the member of staff who had organised the re-grading. Although the professor himself did not feel vindicated by the report, the tribunal ruled that the test was not how he felt but how it would appear to observers: an objective, not a subjective test. He therefore lost his case.

The distinction between subjective and objective is important in many areas of the law and this is one of them. It is not whether the employee feels no trust and confidence, but whether the employer, objectively seen, has acted in such a way as breaches that confidence.