Employers must tread carefully to avoid tribunals

NO SOONER had the introduction of fees for initiating unfair dismissal claims been seen as a big step in making the process more “employer-friendly”, bosses have been dealt a serious blow by a decision of the Employment Appeal Tribunal (EAT) in Scotland.

Picture: Ian Rutherford

In Wright v North Ayrshire Council it was decided that in order to establish constructive dismissal an employee did not need to show that the breach of contract by the employer was the only or principal reason for resignation, as long as the breach “played a part” in the dismissal.

In this case, a care assistant at a nursing home had resigned from her post for various reasons. The claimant had raised three unanswered grievances, which she held to be a fundamental breach of her contract, but she had also resigned due to difficulties of caring for her partner. At tribunal her claim for constructive dismissal was dismissed as the breach was not “the effective cause”.

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However, the EAT held that the breach of contract needed only to “play a part” in the termination for a successful constructive dismissal claim; rather than being “the” effective cause, it only needed to be “an” effective cause. Effectively, the decision now makes it easier for an employee to claim constructive dismissal, although it remains to be seen whether this case will be further appealed to the Court of Session.

One consolation for employers is that while the bar may be lower, where there are multiple reasons for resignation the compensation may reflect that, had breach of contract been the sole reason for dismissal.

In any case of constructive dismissal, the issue of whether a claim will be won is often highly fact-sensitive. Consequently, employers facing claims should take pains to let lawyers know of any reasons stated by employees for leaving which don’t appear in resignation letter or do not get mentioned by the ex-employee in a tribunal claim.

Why someone decides to leave a job can often be complicated. Unfortunately, employers can now be on the hook for an unfair dismissal but only partly to blame for an employee resigning. This being so, only absolutely safe course of action is for the employer never to act in breach.

• Chris Leitch is head of employment at Tods Murray