The EAT has confirmed the three elements that must be present for such cases to succeed
In the case, Hutchison v Scottish Ministers, the Employment Appeal Tribunal had to consider whether voluntary severance was compatible with constructive dismissal.
Facts
Hutchison worked in the Scottish Prosecution Service. She began a period of stress-related sickness absence. During her absence, her employer invited the workforce to apply for voluntary severance. On hearing of this scheme, Hutchison submitted an application. She was able to return to work briefly to an alternative role. She then received a severance offer in the form of a lump sum payment which she subsequently accepted.
Having negotiated a leaving date, Hutchison immediately brought employment tribunal proceedings, claiming constructive dismissal. She alleged that the stress caused by her employer amounted to a fundamental breach of the employment relationship and left her no option but to leave the organisation. This, she argued, was supported by medical evidence which had confirmed a return to her former role would be detrimental to her health. In the circumstances, she believed her position to be no different from someone who was dismissed by an employer but who subsequently participated in negotiations over leaving terms. She claimed it was not unreasonable for her to pursue an opportunity to leave with a financial package.
Tribunal
Both the employment tribunal and, on appeal, the EAT dismissed Hutchison’s claim, finding that her employment had ended by mutual agreement. To establish constructive dismissal, she would need to show the employer had acted in fundamental breach of her contract and that this was the reason for her resignation. An important aspect of the tribunal’s finding was that this was not the case here. Hutchison at no stage communicated to her employer that she considered the relationship at an end because of the employer’s conduct. She had returned to work and commenced a voluntary severance application, giving no indication of her grievance or of her intentions.
EAT
The EAT found that Hutchison might well have established a potential claim for constructive dismissal on the evidence she presented if she had tendered her resignation and communicated her reasons for doing so clearly. But she had chosen not to pursue this course. As a result, the basis on which her employment ended was her pursuit of voluntary severance. Even if the tribunal was wrong in that respect, and she could establish that the employer exerted pressure on her to leave, this would amount to a dismissal, not a constructive dismissal.
Comment
One can appreciate the obvious attraction for employees in opting for a paid departure in circumstances where they consider themselves constructively dismissed. This is clearly easier than taking the daunting step of resigning and pursuing a claim. But the law is clear that employees must establish three key elements in respect of such a claim. There has to be:
- a fundamental breach of contract on the part of the employer
- the employee must have resigned because of this
- the employee must not delay unduly in doing so.
The tribunal was not satisfied that breach of contract was the reason for Hutchison leaving in this case.
Simon Rice-Birchall is a partner at Eversheds
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