Constructive Dismissals Flashcards
statute for CD
s95(1)
Elements for CD + case
Western Excavating Ltd v Sharp:
- A repudiatory breach of contract on part of the employer
- The breach must be the reason the employee resigns
- The employee must accept the breach
- Were the employers fair?
examples of a repudiatory breach
unilaterally amends something in the contract e.g. pay, employees benefits or duties
Fails to address a grievance
Discrimination
THERE MUST ALSO BE A BREACH OF THE IMPLIED TERM OF MUTUAL TRUST AND CONFIDENCE
Case related to unilaterally amending pay
Industrial Rubber Products v Gillon
Case related to amending benefits
Jones v F Sirl & Son (Furnishers) Ltd - moved duties and removed petrol allowance
case related to not hearing grievances
WA Goold Ltd v McConnell - managing director said he would deal with grievance later, CD
case related to discrimination
Nottinghamshire CC v Meikle - C was going blind and they done nothing to help her despite asking
where does the breach of implied term of trust and confidence come from + quote
o Malik v BCCI - An employer will not, ‘without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee’
example of breach of implied term of trust and confidence
Blackburn v Aldi Stores Ltd - failure to follow grievance procedure can amount to breach of trust and confidence. He had been constructively dismissed.
what is the last straw doctrine
resignation is in response to a series of breaches of contract which cumulatively amount to a breach of the implied term of trust and confidence
Can a repudiatory breach be cured? + case
o NO - Bournemouth University HEC v Buckland
BUT it can be prevented from escalating to a breach of implied term of trust and confidence Assamoi v Spirit Pub Company Ltd. D’s accepted C’s grievance but D left thinking it couldn’t be resolved. No unfair dismissal. These cases can be distinguished because Buckland was ongoing for weeks, whereas Assamoi was quickly resolved by the employers.
what is meant by an employees acceptance of a breach?
The employee must communicate the acceptance of the breach e.g. by resignation
If they affirm the breach (carry of working) they lose the right to claim
Case related to affirmation + point
affirmation looks at conduct opposed to time
Chindove v William Morrisons Supermarket Plc - C resigned 6 weeks after an act of race discrimination. D argued this delay mean he accepted the repudiatory breach, therefore affirming his contract of employment. EAT disagreed, because C was off sick in the 6-week period his claim for constructive dismissal could succeed
Explain s98(4) in this context…
was the employers conduct fair? very rarely the answer is yes. In Savoia v Chiltern Herb Farms
