This document summarizes the key elements needed to establish a claim for constructive dismissal in an employment tribunal. It outlines that an employee must show: (1) a fundamental breach of contract by the employer; (2) the employee resigned because of this breach; and (3) they did not delay too long in resigning or affirm the contract through their actions. Examples of breaches include changes to pay or duties without consent. The breach must undermine the implied duty of trust and confidence between the parties when viewed objectively. A series of minor issues can cumulatively lead to constructive dismissal if there is a "last straw" incident. However, continuing work for a long time after the breach could result in affirming the contract
Unfair Dismissal - Misconduct (2 of 4) Webinar SlidesShorebird RPO
In the second webinar of this series on unfair dismissal, Barrister Helen Gardiner gives us a whistle stop tour of Misconduct and what an employer really should know.
If you would like to view the full webinar, please email marketing@shorebird-rpo.com and we will happily email the recording immediately, or why not join our LinkedIn Webinar Network to access all our archives http://linkd.in/1acZPdh
Unfair Dismissal - Misconduct (2 of 4) Webinar SlidesShorebird RPO
In the second webinar of this series on unfair dismissal, Barrister Helen Gardiner gives us a whistle stop tour of Misconduct and what an employer really should know.
If you would like to view the full webinar, please email marketing@shorebird-rpo.com and we will happily email the recording immediately, or why not join our LinkedIn Webinar Network to access all our archives http://linkd.in/1acZPdh
Independent Contractors v. Employees-- How to Avoid MisclassificationDeirdreJ6972
Employers are fans of independent contractors, for some obvious reasons. The IRS and Department of Labor know this too. Don\'t get caught misclassifying your employees as contractors. Be smart and be wary.
Evelyn was asked to speak before 50 women at the Business Women's Network of York Region November event. She prepared and presented a short primer of employment law as it effects employers, including dealing with such topics as: employment agreements; termination clauses; just cause; bad faith; applicable legislation.
Do you find the TUPE Regulations a minefield?
Do you despair at the thought of having to grapple with potential TUPE issues in your organisation?
This recorded webinar will help guide you through the TUPE Legislation leaving you with a clearer understanding of:
The situations where TUPE will apply
The main principles and obligations arising from TUPE
The automatic transfer principle
Obligations to inform and consult
Potential liability and claims that an organisation could face for failing to comply with the TUPE legislation
This webinar will provide practical and straightforward advice and tips to help you understand TUPE legislation and what this means for your business. It will appeal to HR Management and Business Owners and there will be time at the end for questions. Please use the prompt when registering if you have a particular question you would like Caroline to answer.
Recorded on June 13, 2013. - This webinar, intended for community workers, presents options for workers who have been fired or laid off. It looks at when an employer can fire an employee, what a worker can do if they are wrongfully dismissed, and what the Courts or the Ministry of Labour look for when dealing with dismissal cases.
Watch an archived recording of this webinar and download copies of presentation materials at
http://yourlegalrights.on.ca/webinar/wrongful-dismissal
On May 15, 2014, the Gowlings Employment and Labour Law Group discussed recent judicial and other legal developments which impact Ontario workplaces at the Grand Valley HRPA Annual General Meeting.
Changes on the Horizon: The DOL's Proposed Rules Regarding Independent Contra...Jim Cowan
This Presentation covers the DOL's new Proposed Rules. Topics covered include:
• The DOL Adopting more Restrictive Tests for Independent Contractor
• The Proposed Changes to DOL White Collar Exempt Status Regulations
• The Computer Professionals Exemption Decision Tree
• The Salary Basis Test, Permitted Salary Deductions
• The Exceptions from "No Pay-Docking" Rule
• Examples & Effects of Improper Deductions
• Payroll Practices that Do Not Violate the Salary Basis Test
• Additional Compensation.
DISCLAIMER:
By using this site and accessing the information presented by CowanPerry, PC., you understand that there is no attorney client relationship between you and CowanPerry, PC. The site and information contained therein should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
The information contained on this site is summary in nature and does not include all conditions, limitations, or exceptions that may be applicable to a particular situation. Every effort has been made to present current information without inaccuracies; however, errors, additions, deletions, and changes in the laws or procedures may occur and could make the information out of date or inaccurate. CowanPerry, PC does not assume any liability whatsoever for the "up-to-dateness", accuracy and completeness of the information.
Independent Contractors v. Employees-- How to Avoid MisclassificationDeirdreJ6972
Employers are fans of independent contractors, for some obvious reasons. The IRS and Department of Labor know this too. Don\'t get caught misclassifying your employees as contractors. Be smart and be wary.
Evelyn was asked to speak before 50 women at the Business Women's Network of York Region November event. She prepared and presented a short primer of employment law as it effects employers, including dealing with such topics as: employment agreements; termination clauses; just cause; bad faith; applicable legislation.
Do you find the TUPE Regulations a minefield?
Do you despair at the thought of having to grapple with potential TUPE issues in your organisation?
This recorded webinar will help guide you through the TUPE Legislation leaving you with a clearer understanding of:
The situations where TUPE will apply
The main principles and obligations arising from TUPE
The automatic transfer principle
Obligations to inform and consult
Potential liability and claims that an organisation could face for failing to comply with the TUPE legislation
This webinar will provide practical and straightforward advice and tips to help you understand TUPE legislation and what this means for your business. It will appeal to HR Management and Business Owners and there will be time at the end for questions. Please use the prompt when registering if you have a particular question you would like Caroline to answer.
Recorded on June 13, 2013. - This webinar, intended for community workers, presents options for workers who have been fired or laid off. It looks at when an employer can fire an employee, what a worker can do if they are wrongfully dismissed, and what the Courts or the Ministry of Labour look for when dealing with dismissal cases.
Watch an archived recording of this webinar and download copies of presentation materials at
http://yourlegalrights.on.ca/webinar/wrongful-dismissal
On May 15, 2014, the Gowlings Employment and Labour Law Group discussed recent judicial and other legal developments which impact Ontario workplaces at the Grand Valley HRPA Annual General Meeting.
Changes on the Horizon: The DOL's Proposed Rules Regarding Independent Contra...Jim Cowan
This Presentation covers the DOL's new Proposed Rules. Topics covered include:
• The DOL Adopting more Restrictive Tests for Independent Contractor
• The Proposed Changes to DOL White Collar Exempt Status Regulations
• The Computer Professionals Exemption Decision Tree
• The Salary Basis Test, Permitted Salary Deductions
• The Exceptions from "No Pay-Docking" Rule
• Examples & Effects of Improper Deductions
• Payroll Practices that Do Not Violate the Salary Basis Test
• Additional Compensation.
DISCLAIMER:
By using this site and accessing the information presented by CowanPerry, PC., you understand that there is no attorney client relationship between you and CowanPerry, PC. The site and information contained therein should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.
The information contained on this site is summary in nature and does not include all conditions, limitations, or exceptions that may be applicable to a particular situation. Every effort has been made to present current information without inaccuracies; however, errors, additions, deletions, and changes in the laws or procedures may occur and could make the information out of date or inaccurate. CowanPerry, PC does not assume any liability whatsoever for the "up-to-dateness", accuracy and completeness of the information.
The first of its kind, this seminar is held to provide participants with information and knowledge regarding a constructive dismissal where employee resigns as a result of the employer creating a hostile work environment.
Maurice Blackburn provided union lawyers and industrial officers with the opportunity to gather CPD points with content that was relative to their industries. Presenters include Barristers Bob Reed and Cate Hartigan, and Maurice Blackburn Employment and Industrial Section Principal Giri Sivaraman.
Small Claims 2017: Essential Law, Winning Strategies for Lawyers & Paralegals Evelyn Perez Youssoufian
An employment law primer for paralegals and lawyers, including: Jurisdiction, Possible Claims, Human Rights, Employment Contracts, Wrongful Dismissal, including how to calculate reasonable notice
Managing Dismissal to Avoid RepercussionlegalPadmin
Speech by K.Somasundram, Assistant Secretary from MTUC, given in Labour Law Seminar held by Legal Plus Sdn. Bhd (www.legalplus.com.my) on Apr 10, 2015.
Similar to Constructive Dismissals - Refreshing Law Ltd - HR Insights, June 2019 (20)
HR Insights, The employer’s role in tackling domestic abuse - 8th June 2021 H...James Cheetham
Domestic Abuse is something all employers need to be aware of and understand their role in tackling.
A bill is currently going through Parliament to ensure there is a statutory definition everyone can work to.
It’s on employers minds as we all became aware in lockdown that for some, home was not a safe space.
In this session, Anna Denton-Jones discusses what it is, what to look out for, how it can affect the workforce and the measures employers might take.
HR Insights 24.02.21 - The Impact of Vaccinations James Cheetham
Anna Denton-Jones of Refreshing Law focused on the topic of Covid-19 vaccinations and the impact they will have on the workplace and HR professionals when rolling out new HR policies and procedures.
This included issues such as; vaccine hesitancy from employees, data protection, staff contracts, the risks of discrimination, impacts on recruitment, awareness of unfair dismissals, and legislation to stay on top of.
An incredibly timely and important webinar, loaded full of information, with our most virtual attendees so far! Have a listen to this month’s HR helping hand.
Settlement Agreements, Refreshing Law ltd slides, March 2020James Cheetham
Covering the requested topic of settlement agreements, and how to maximise their potential. The slides were originally for an event on the 24th March 2020, and due to COVID-19, this has been adapted into a podcast found here: https://yolkrec.podbean.com/e/hr-insights-settlement-agreements-march-2020/
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Anna Denton Jones - Company Reorganisations - Yolk Recruitment HR Insights - ...James Cheetham
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2. Ingredients the employee needs
to establish
• there was a fundamental breach of contract
on the part of the employer
• actual breach/anticipatory breach
• the employer’s breach caused the employee
to resign
• the employee did not delay too long before
resigning, thus affirming the contract and
losing the right to claim constructive dismissal.
navigating employment law
4. Western Excavating (ECC) Ltd v
Sharp 1978
• For an employer’s conduct to give rise to a
constructive dismissal it must involve
a repudiatory breach of contract
navigating employment law
5. • Lord Denning: ‘If the employer is guilty of
conduct which is a significant breach going to
the root of the contract of employment, or
which shows that the employer no longer
intends to be bound by one or more of the
essential terms of the contract, then the
employee is entitled to treat himself as
discharged from any further performance. If
he does so, then he terminates the contract by
reason of the employer’s conduct. He is
constructively dismissed.’
navigating employment law
6. Fundamental breach of contract
• What are the terms of the contract?
• Has a term been broken?
• Was that breach a fundamental breach?
navigating employment law
7. ‘Fundamental’
• Is the breach fundamental?
• Effect on employee
• Objective
• Not a question of reasonableness
• Not a question of the employer’s intention
navigating employment law
8. In practice
• Identify the alleged breach of contract.
• Establish the evidential basis of the claim.
• Satisfy the tribunal that the facts as proven
are sufficient in law to amount to a
repudiatory breach of contract.
navigating employment law
9. Examples of things which are a
breach of contract
• Unilateral reduction in pay / commission
• Unilateral changes in job duties
navigating employment law
10. Examples of things which are a
breach of contract
• Insistence on working hours that not
contractually obliged to work
• Failure to provide employee with work they
are employed to do
navigating employment law
11. Examples of things which are a
breach of contract
• Suspension without pay in absence of
contractual term
• Layoff without a contractual term
navigating employment law
12. OTHER BREACHES THAT MAY BE
FUNDAMENTAL BREACHES OF AN
IMPLIED TERM
navigating employment law
13. Duty to promptly redress
grievances
• WA Goold (Pearmak) Limited v McConnell
1995
navigating employment law
14. British Aircraft Corporation Ltd v
Austin 1978 IRLR 332 EAT.
• Failure to take reasonably practicable steps to
provide a safe system of work
• Failure to investigate complaints relating to
health and safety promptly and reasonably
navigating employment law
15. Duty to provide a suitable working
environment
• Temperature
navigating employment law
16. IMPLIED TERM OF TRUST AND
CONFIDENCE
navigating employment law
17. Courtaulds Northern Textiles Ltd v
Andrew 1979
• EAT held that it was a fundamental breach of
contract for the employer, without reasonable
and proper cause, to conduct itself in a
manner ‘calculated or likely to destroy or
seriously damage the relationship of
confidence and trust between the parties’.
navigating employment law
18. Woods v WM Car Services
(Peterborough) Ltd 1981.
• ‘To constitute a breach of this implied term it
is not necessary to show that the employer
intended any repudiation of the contract: the
tribunal’s function is to look at the employer’s
conduct as a whole and determine whether it
is such that its effect, judged reasonably and
sensibly, is such that the employee cannot be
expected to put up with it.’
navigating employment law
19. Malik v BCCI 1997
• Lord Steyn – HL emphasised that there is a
breach of the term only where there is ‘“no
reasonable and proper cause” for the
employer’s conduct, and then only if the
conduct is calculated and likely to destroy or
seriously damage the relationship of trust and
confidence.
navigating employment law
20. Leeds Dental Team Ltd v Rose
2014
• The test doesn’t require a Tribunal to make a
factual finding as to what the actual intention
of the employer was; the employer’s
subjective intention is irrelevant. If the
employer acts in such a way, considered
objectively, that his conduct is likely to destroy
or seriously damage the relationship of trust
and confidence……..
navigating employment law
21. Omilaju v Waltham Forest 2005
• If on an objective approach there has been no
breach the claim will fail
navigating employment law
22. Leach v The Office of
Communications [2012] IRLR 839)
• Court of Appeal cautioned against overusing
or invoking too easily alleged breach of trust
and confidence, stating that it is not a
convenient label to stick on any situation.
navigating employment law
23. Breach of implied term of trust
and confidence
• Is always a fundamental breach Morrow v
Safeway Stores plc 2002 IRLR 9, EAT.
navigating employment law
24. Examples of breach of trust and
confidence
• Refusing to investigate complaints
• Conduct which is ‘so intolerable that it
amounts to a repudiation of contract’
• Extreme refusal to award pay increase (where
everyone else has had one and being singled
out)
• Giving pension increases to members of one
union but not another
navigating employment law
25. Examples of breach of trust and
confidence
• Disciplinary sanction out of all proportion with
offence
• Ineptitude in disciplinary process
• Gogay v Hertfordshire County Council 2000
navigating employment law
26. Suspension
• Was there a reasonable and proper cause for
suspension?
• Recording your decision making process
• Mayor and Burgesses of the London Borough
of Lambeth v Agoreyo [2019]
27. Examples of breach of trust and
confidence
• Failing to give support so employee could
carry out their duties free from harassment
and disruption by colleagues
• Failure to investigate allegations of sexual
harassment or to treat incidents with
sufficient gravity
• Persistent failure to make reasonable
adjustments Miekle
navigating employment law
28. • Dressing down in front of colleagues
• Failing to provide an impartial person to hear
grievance
• Giving a false reason for dismissal
navigating employment law
29. • Telling the employee on sick leave that there
are concerns about them
• Excessive workload
• Intolerable working environment
navigating employment law
30. The Governing Body of Tywyn
Primary School v Aplin 2017
• Flawed disciplinary process – unconscious bias
navigating employment law
31. Connell v Mid Essex Hospitals
Services NHS Trust 2019
• Breach of trust and confidence arose during
redundancy process as a result of failure to
look at alternative employment properly
navigating employment law
33. Cummulative effect of minor
issues
• A course of conduct can cumulatively amount
to a fundamental breach of contract entitling
an employee to resign and claim constructive
dismissal following a ‘last straw’ incident even
though the last straw by itself does not
amount to a breach of contract — Lewis v
Motorworld Garages Ltd 1986 ICR 157, CA.
navigating employment law
34. Logan v Commissioners of
Customs and Excise 2004 ICR 1, CA
• Where an employee is complaining about an
employer’s course of conduct culminating
with an act alleged to constitute the last straw,
there is no need for there to be ‘proximity in
time or in nature’ between the last straw and
the previous act of the employer
navigating employment law
35. Omilaju
• The final straw must contribute something to
the breach, although what it adds might be
relatively insignificant:
• The final straw must not be utterly trivial.
• The act does not have to be of the same
character as earlier acts complained of.
• It is not necessary to characterise the final
straw as "unreasonable" or "blameworthy"
conduct in isolation, though in most cases it is
likely to be so.
navigating employment law
36. • An entirely innocuous act on the part of the
employer cannot be a final straw, even if the
employee interprets the act as hurtful and
destructive of their trust and confidence in the
employer. The test of whether the employee's
trust and confidence has been undermined is
objective
navigating employment law
37. Kaur
• Entitled to rely on the totality of the
employer's acts notwithstanding a prior
affirmation of the contract, provided that the
later act, the "last straw", formed part of the
series. The effect of the final act was to revive
their right to terminate their employment
based on the totality of conduct.
navigating employment law
38. Tolson v Governing Body of
Mixenden Community School
2003
• It is no defence to argue the employee failed
to raise a grievance about the employer’s
conduct
navigating employment law
39. HAS THE EMPLOYEE ACCEPTED THE
BREACH?
Ingredient 2
navigating employment law
40. Société Générale, London Branch v
Geys [2012] UKSC 63
• An employer's repudiatory breach does not
bring the contract to an end automatically:
the contract is not terminated until the breach
is accepted by the employee
navigating employment law
41. Has the employee actually
resigned?
• “that’s it I’ve an f****** nuff”
• “I am leaving, I want my cards”
• “I am resigning”
navigating employment law
42. Can the employee ‘jump’ but give
long notice?
• Cockram v Air Products 2014 – 7 months
notice when 3 months in contract
• Buckland v Bournemouth University Higher
Education Corporation 2010 - to end academic
year.
navigating employment law
43. What evidence is there of the
reason for the employees
resignation/causation?
• Weathersfield Ltd t/a Van and Truck Rentals v
Sargent 1999 CA held that it was not
necessary for an employee, in order to prove
that a resignation was caused by a breach of
contract, to inform the employer immediately
of the reasons for his or her resignation.
navigating employment law
44. What evidence is there of the
reason for the employees
resignation/causation?
• Walker v Josiah Wedgwood & Sons 1978
“the employee should leave because of the
breach of the employer’s relevant duty to him,
and this should demonstrably be the case. It is
not sufficient…if he merely leaves. And….it is not
sufficient if he leaves in circumstances which
indicate some ground for his leaving other than
the breach of the employer’s obligation to him”.
navigating employment law
45. Repudiatory breach need not be
the sole reason provided it is an
effective cause
• Abbycars (West Horndon) Ltd v Ford EAT
0472/07, ‘the crucial question is whether the
repudiatory breach played a part in the
dismissal’, and even if the employee leaves for
‘a whole host of reasons’, he or she can claim
constructive dismissal ‘if the repudiatory
breach is one of the factors relied upon’.
navigating employment law
47. Affirmation/waiver of the breach
• Lord Denning MR Western Excavating (ECC)
Ltd v Sharp 1978 the employee ‘must make up
his mind soon after the conduct of which he
complains: for, if he continues for any length
of time without leaving, he will lose his right to
treat himself as discharged’.
navigating employment law
48. How long?
• Reasonable period – depends on the
circumstances including length of service,
nature of breach and whether employee has
protested
navigating employment law
49. Sick absence and receipt of sick
pay
• Caused by breach
• Keeping the contract alive
• Chindove v William Morrison Supermarkets
2013
• Mari (Colmar) v Reuters Ltd 2015
navigating employment law
50. • Is the employee clearly working under
protest?
• Is the employee clearly trying to establish the
status of something eg:- via their TU rep?
navigating employment law
51. How this dovetails with the ’last
straw’ doctrine
• Breach of mutual trust and confidence
• Affirmation empties the scales
• A fresh straw then lands in the empty scale
• This can revive the former breach
Kaur
navigating employment law