The “severe test” of constructive dismissal

Thursday 08 April 2021

This week, an Advocate who claimed she had been bullied at work lost her claim of constructive unfair dismissal.

Although the Employment Tribunal found Estelle Burns to be an “open and honest witness”, it found against her as she had not overcome the “high bar” that that is required to make a successful claim.

Chris Hendry, a Solicitor at Viberts, shared what employers and employees in Jersey can learn from this important judgment...

In unfair dismissal cases, an employer has actively taken steps to end the employment relationship,” he said. “The employee alleges that the termination was unfair, either because employment was not ended for a potentially fair reason - such as misconduct, performance or redundancy - or because the employer failed to follow a fair dismissal process.  

“Constructive dismissal is where an employee is forced to resign and leave employment due to the employer’s conduct. 

Pictured: Chris Hendry.

A successful constructive dismissal claim requires the employee to meet a range of tests including: 

1. Breach of the contract of employment by the employer
2. The breach related to a fundamental term of the contract of employment    
3. The employee resigned in response to this breach
4. The employee did not wait too long before resigning, failing which the Tribunal may conclude that the breach had been waived. 

This case acts as a reminder that the test for constructive dismissal is easier to state than it is to satisfy. 

The Tribunal’s decision notes that the test for constructive dismissal is a "severe one" and a claim cannot succeed unless "the level of severity is proved."  

In this case, the Tribunal was not satisfied that there had been a fundamental breach of the claimant’s contract of employment.  

This was despite the Tribunal finding that, in relation to comments made to the claimant, “more likely than not these comments impacted negatively upon the claimant and… they were made in ways which were designed to do so."

Further, "none of these comments were necessary." Reports and complaints made by colleagues of the claimant about her to the HR team "were made without proper justification or consideration and, at best, with a disregard for the impact such reports could have on the claimant."

The Tribunal accepted that the acts complained of by the claimant had damaged the trust between her and her colleagues.  

However, to meet the legal threshold for constructive dismissal a claimant must show "that the relationship is fundamentally damaged and not able to continue as before."

The Tribunal did not think the conduct was bad enough to amount to a fundamental breach of contract, despite the Tribunal viewing some of the information presented by the employer as being "at best, inconclusive" and "cherry picked".

While in unfair dismissal claims the burden of proof is on the employer to show that the dismissal was fair, in constructive dismissal cases the burden of proof is reversed.  

It is for the claimant to show, on the balance of probabilities, that the incidents happened and that the behaviour in question was "sufficiently serious to amount to a repudiatory breach of contract".

This decision is a reminder that proving your employer behaved badly is not sufficient to succeed with a claim of constructive dismissal: objectively considered, the conduct in question must have destroyed or seriously damaged trust and confidence, making it impossible for the relationship to continue as before.  

A "severe" test indeed.