Mythbusting: Constructive dismissal claims

Constructive dismissal claims are commonly misunderstood and misrepresented, as typified by the headlines attracted by two recent employment tribunal judgments. Stephen Simpson indulges in a little mythbusting.

Constructive dismissal claims can make good newspaper stories, though the eye-catching copy often fails to capture the essence of the claim, as demonstrated in Hamilton v Epsom and St Helier University Hospitals NHS Trust and Walker v Robsons (Rickmansworth) Ltd.

Typical headline: "Nurse who was left out of tea round wins payout" 

What is the reality behind this headline? While it is true that the claimant in Hamilton v Epsom and St Helier University Hospitals NHS Trust alleged that a colleague did not make tea for her when he was making tea for other colleagues, this was just one of the more minor matters in a long series of unresolved incidents that ultimately led the claimant to resign.

The pair has clashed over their approaches to patient treatment, which resulted in the nurse's colleague allegedly ignoring morning greetings from her and facing the other way when she was presenting in meetings.

More seriously, the nurse alleged that the colleague had:

• been verbally abusive to her, saying "I don't like you";
• made a threat of violence to her, saying that he was going to "kick [the claimant's] butt"; and
• stolen a book that belonged to her, writing his name over hers on the inside cover of the book.

The claimant alleged that his poor behaviour to her continued after mediation.

The employment tribunal held that the nurse was constructively dismissed over her employer's handling of her complaints about how the colleague had treated her on multiple occasions over an extended period of time.

The employer accepted that his conduct and communications towards the claimant "continued to fall far short of the standards it expected". To the tribunal, it appeared that the employer had done very little beyond speaking to him about his behaviour - which evidently made no difference - except for making suggestions that were not then followed through.

For example, the employer had not given serious consideration to whether it was appropriate to:

• begin a disciplinary process for inappropriate and disrespectful behaviour towards the claimant; and/or
• reassign him so that he was moved away from working with the claimant.

The employment tribunal awarded the claimant £41,000 for constructive dismissal.

Typical headline: "Workers can sue if given 'low status' desk"

In Walker v Robsons (Rickmansworth) Ltd, an estate agent branch manager who resigned after he was transferred to another branch - where his desk would be in the middle of the office (instead of at the back) - won his constructive dismissal. Is that the whole story? No, of course not.

The claimant was "unsettled" and had "mixed feelings" when the company director told him that he was being moved to a quieter, less successful branch. Unbeknownst to him, he would be sharing the branch manager role with a more junior colleague who had taken it upon himself to move to the branch's back desk before the claimant arrived.

The employment tribunal accepted that the back desk has "both a symbolic and a practical significance". The practical significance is that this is where the books and ledgers are kept. The symbolic significance is that this is where the branch manager traditionally sits.

Had this been the whole story, the claimant's constructive dismissal claim would have been unlikely to succeed. However, the tribunal case exposed other facts that clarify why he succeeded in his claim. These included:

• Evidence of poor communications: The tribunal found that the claimant was not told in advance of the relocation that he would in effect be moving to a job share with a more junior colleague, which was an unusual arrangement. He should have been told in advance, either in a meeting or in person. At the very least, he should have been provided with a job description.
• An ugly confrontation: The tribunal heard evidence that, when the claimant challenged the new arrangement (albeit "not in the politest terms"), the response from the company director was something along the lines of "I can't believe a f**king 53-year-old man is making a fuss over a desk". The claimant also alleged that the company director threatened him with disciplinary action if he did not sit at the middle desk.
• Goading the claimant into resigning: The tribunal found that there was an element of the company director "goading" the claimant into resigning. It was alleged that, when the claimant threatened to resign, the company director responded "go on then" because he suspected that the claimant had already found another job.

In upholding the constructive dismissal claim, the employment tribunal concluded that this series of events breached the implied term of trust and confidence, destroying or seriously damaging the employer/employee relationship.

The tribunal ordered a remedy hearing to decide the level of the claimant's compensation. Notably, the tribunal directed that there should be no reduction for contributory fault on the claimant's part.