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Blog: Jump before you’re pushed (or, push ’em before they jump)

Having fought, at a best guess, a couple of hundred cases in the Employment Tribunals, it won’t be a surprise that I’ve lost a few along the way. However, only four stand out as cases which I had thought would be winners. One was a disability discrimination claim in which I acted for the claimant. In the other three I acted for the employer, and all three were constructive unfair dismissal claims. The most recent loss caused me to reflect on whether this was a pattern, and what lessons could be taken from it.

In the first of these three constructive dismissal cases, I represented a charity with links to the Armed Services. Many of the staff were ex-military, although notably not the Claimant. She had had various run-ins with her manager, which ultimately culminated in her resignation. The ET found in favour, by a majority, of her constructive dismissal claim. The “militaristic” atmosphere, and particularly the way in which the manager had “ordered” her to do things, breached the duty of trust and confidence.

The second case involved a senior executive, who was MD of a business within a group. After a particular problem, the Group CEO wrote to a longstanding friend and business contact that he would shortly be “reconsidering the leadership” of that part of the organisation. As emails are want to do, the offending message found its way back to the claimant when she was copied into a subsequent message in the chain. She resigned as a result, claiming constructive dismissal, and succeeded in persuading an ET that the Group CEO’s expression of lack of confidence in her to an external party was sufficient to breach the duty of mutual trust and confidence.

The most recent of these constructive dismissal cases again involved a senior executive. In this case the MD of the business had told him, in confidence, that a management restructure would involve the creation of a new Deputy MD post, and that he was the leading candidate. He wasn’t promised the role, in fact he was told it would be opened up to external competition, but he was assured he was a strong candidate and told there was no one else within the business who was considered credible for the role.

It transpired that the MD re-thought his position and conducted an external recruitment process only, presenting the restructure and the successful candidate as a fait accompli. The passed-over executive resigned, and again successfully sued. He didn’t win because of not having been given the job, but because of the company’s late decision to exclude him from the candidates when he’d been led to believe that he would be a strong contender within it.

The second of these cases went to appeal; we were successful in putting the lid back on some judicial inventiveness in the remedy part of the decision, but predictably unsuccessful in overturning the substantive unfair dismissal finding. In the other cases there was neither the appetite nor the merit to take it further. It is incredibly difficult to persuade the Employment Appeal Tribunal to interfere with an ET decision as to whether the implied term of trust and confidence has been breached on any given set of facts.

In ‘ordinary’ unfair dismissal cases the claimant often finds real difficulty in challenging the substantive fairness of the dismissal decision (as opposed to any procedural flaws in the process) and the ‘range of reasonable responses’ test gives the employer a very wide margin of appreciation, which is incredibly helpful when defending these claims. In contrast, in constructive dismissal cases Employment Tribunals sometimes seem very ready to find that employers should have acted differently.

So, are there merits in an employer considering a ‘pre-emptive strike’ of dismissing someone whom they are afraid might be about to resign and sue? Well, of course there may not be any grounds to allow the employer to fairly dismiss – indeed, in many constructive dismissal cases, like the third one above, the employer actively wanted the employee to stay. However, where an employer does want an employee to leave but caution and fear of a claim may be staying the employer’s hand, it’s always worth reflecting that there are advantages in being the party to act and bring an end to the relationship, and to investigate the pre-emptive dismissal option in detail with your friendly employment lawyer.

Equally, and from the other side of the fence, it takes a brave employment lawyer to advise an employee to jump. But then don’t they say that fortune favours the brave?

Joanne Sefton
Barrister, Menzies Law

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