Category Archives: unfairly constructively dismissed

Not So Protected Conversations

On 29 July 2013 the government introduced the concept of “protected conversations” which allows for employers and employees to have discussions about the ending of the employment relationship.  The concept is to extend the “without prejudice” rule in circumstances where there is no dispute.

However a protected conversation will only apply in cases of unfair dismissal.  Therefore there are certain circumstances that employers will not be protected from possible employment tribunal claims.  These include:

• with any discrimination complaint, whistle blowing complaint, complaint of automatic unfair dismissal, or breach of contract claim will not be covered. If any such claim is conjoined with the ordinary unfair dismissal claim, in practice the tribunal is likely to hear evidence about the discussions.

• Any discussion which is not “with a view to the employment being terminated on agreed terms”. It will therefore be important that the discussion is not simply cataloguing the difficulties experienced with the employee; it must be a constructive dialogue with a view to a settlement.

• Even if the discussion includes the making of an offer in exchange for the employee’s exit, there remains the possibility that the employee is offended by the conversation and that they regard it as unfair. In those circumstances, the employee may seek to raise a grievance concerning the discussion. It would usually be regarded as a breach of trust and confidence not to hear and address a grievance which might result ultimately in a constructive unfair dismissal claim. It may be unrealistic in practice to imagine that in such a constructive unfair dismissal claim the tribunals will be willing to exclude evidence of the original discussion which will forma an important element of the case.

• “improper behaviour” (in the opinion of the tribunal) will not be covered by the rule. This is not defined in the legislation, and will require to be established through caselaw.

Therefore, employers should be wary about how they approach any discussions they intend to have with underperforming and difficult employees otherwise discussions could be used against them.  


What is Constructive Dismissal?

I receive a lot of enquiries from disgruntled employees looking to take their employers to an employment tribunal for constructive dismissal.  Constructive dismissal is very hard to prove. Employees must show that there was a fundamental breach of contract by the employer that leads to a breakdown in trust and confidence.  They must then show that the decision to terminate their employment was in response to the breach.  The grievance procedure should always be pursued first before terminating their contract.
When hearing a case of constructive dismissal an employment tribunal will consider the Western Excavating Test derived from Western Excavating Ltd v Sharp 1978 caselaw:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

The employment tribunal panel will have to decide whether a dismissal has taken place then will consider the fairness of that dismissal.    

A case that I successfully represented recently involved an employee complaining to her employer about the struggles she was having with her job that had been going on for months.  The employer wrote back to her advising her to get on and do her job otherwise they would be dismissed or alternatively they could choose to resign.  At the time the employer was unable to offer any work to the employee.  The employment tribunal panel decided that the employee had been unfairly constructively dismissed.