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Constructive Unfair Dismissal

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Our latest Q & A as featured in the FT

We recently advertised for a job and successfully appointed a new member of staff. However, a few dramatic events have meant that her job will now need to take a slightly different character. I didn’t think it would be an issue but the change has left the employee seriously disappointed and she is threatening to quit and make a claim for constructive dismissal! What should we do?

Having invested considerable resources in finding the right person, it would be a real shame to lose your new employee. The best place to start is by explaining the reasons for the change and to listen to her concerns. You might be able to alleviate them.

Your situation is not dissimilar to that of Sir Alan Sugar’s Apprentice Stella English who ended up filing a constructive dismissal claim. The good news is that employees who started work on or after 6 April 2012 can only bring an unfair dismissal claim after two years with the business.

If this situation happens again with an employee who has been with your business long enough to bring a claim, you should start by having a look at their contract. Should the job title or description of the employee’s duties have changed dramatically then this could be a fundamental breach of contract; entitling them to resign and claim constructive dismissal. In your current situation it sounds more like the role has changed slightly and only a breach that goes to the heart of the contract will entitle someone to resign and bring a claim.

I would always advise that employers include a clause in employment contracts which expressly states that employees can be asked to undertake other duties as the company sees fit. Of course this must always be applied within reason. Going a step too far would enable a member of staff to succeed in a constructive unfair dismissal claim. The test would be whether you as the employer conducted yourself without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employers and employees.

If you have carefully and sensitively explained why the job needs to be slightly different, considered your employee’s concerns and tried to find a solution that is acceptable, it seems unlikely that she would have a valid claim. That, however, might not deter her from bringing one so do try and solve the situation informally if at all possible.


 

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