What part of the employer’s conduct led to an employee’s constructive dismissal?

14 May 2014

A dismissal occurs not only when the employer takes steps to terminate an employee’s employment but also in circumstances when the employer has acted so unreasonably (in breach of the contract of employment) that an employee has no choice but to resign. Constructive dismissal claims can be tricky to run as it relies on the employee showing that the employer’s breach of contract was sufficiently serious to justify their resignation and that they resigned in response to that breach.

An employer’s conduct was examined recently in Clements v Lloyds Banking plc, in which it was found, as a matter of fact, that Mr Clements was subjected to discriminatory conduct by his manager, Mr Shawcross, who made the comment “you’re not 25 any more”. Mr Clements alleged that this was part of a campaign by Mr Shawcross to move him out of his role and replace him with a younger employee.

The Employment Tribunal found that Mr Clements had been constructively dismissed. It also found that the comment made by Mr Shawcross was discriminatory on the grounds of age. However, perhaps surprisingly, the Employment Tribunal found that the discriminatory comment was not part of the employer’s breach of contract which entitled him to resign. The constructive dismissal claim succeeded because the Tribunal found that Mr Shawcross had acted unreasonably in trying to remove Mr Clements from his post; however, while the Tribunal found that Mr Shawcross had no good reason for wanting to get rid of Mr Clements, it considered that it was not because of his age.

What is interesting about this case is that the Tribunal separated Mr Shawcross’s discriminatory comment from his unreasonable conduct, and found that the act of discrimination was not a material part of the conduct which amounted to a breach of contract by the employer in response to which Mr Clements resigned. One might be left wondering what Mr Shawcross’s motives were, if not discriminatory, as no conclusion was reached by the Tribunal on this.

By Michelle Tudor

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