Hello and welcome back to your weekly case law update. Last week’s newsletter focussed on the gig economy and dress codes. This week we have three cases for you. One on constructive dismissal, one on the national minimum wage and one on disability discrimination.
Our first case is about constructive dismissal. For anyone who is unfamiliar with the topic, last week’s update had a good summary of constructive dismissal cases. Whereas last week’s case focussed on the reason for dismissal, this week’s focuses on the intent of the employee.
Today’s question
Can an employee be constructively dismissed if they did not intend to terminate their employment when resigning?
Mr Brown, the Claimant, had been employed by Ogilvie Construction, the Respondent, for 28 years. He had started as an apprentice joiner but had been promoted several times to the role of General Foreman, a role he was good at and enjoyed.
The Claimant was then promoted to Site Manager. Before taking the position, the Claimant raised concerns about the number of hours the role would require. The concerns continued to be raised and the Claimant was working between 53-70 hours a week.
The Claimant informed the Respondent that he would be happy to be replaced as Site Manager and return to normal working hours. Towards the end of the project the Claimant was managing he sent the Respondent an email stating, “Just to confirm I would like to give you notice to finish up in four weeks from this position.”
The Respondent took this to mean he wished to terminate his employment and sent the Claimant a letter accepting his resignation, giving notice pay and arranging the return of company property. The Claimant did not respond to this letter stating that was not his intention and his employment came to an end.
The Claimant then raised a grievance about his dismissal/hours. He attended the grievance hearing despite already having a job elsewhere. At the hearing, the Respondent offered to re-employ the Claimant as a General Foreman. He rejected the offer and began Tribunal proceedings for constructive unfair dismissal.
At ET the Respondent argued the resignation was ambiguous and, during evidence, the Claimant even stated that his intention was not to terminate employment, merely resign as a site manager and return to the foreman role. Despite this, the ET held that the Claimant had been constructively dismissed.
The ET held that the excessive hours worked by the Claimant were not only an express breach the hours’ clause of his contract but also an implied breach of the term of trust and confidence. The Respondent had accepted his resignation, paid his notice and the Claimant had not queried this and affirmed it by securing different employment.
The Respondent appealed, it argued the judgment was perverse as the Claimant had admitted he did not intend to resign. However, the EAT dismissed the appeal. It held the Claimant’s and Respondent’s actions affirmed the termination and resignation regardless of what the Claimant said.
The Takeaway point:
Yes, an employee can be unfairly constructively dismissed even if they did not intend to terminate employment when they resigned. If the actions post-resignation affirm the ‘resignation’, then the intent does not matter.
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