Employment Update: Constructive disimissal/disability discrimination

20 March 2007

Where an employee resigns in the context of an attempt to raise a grievance and claims constructive dismissal, the tribunal will use the ‘range of reasonable responses’ test to decide whether the operation of the employer’s grievance procedure was fair.

The EAT recently considered two cases together - Abbey National v Fairbrother and Barratt v Accrington & Rossendale College, where employees had resigned in the face of what they considered to be unsympathetic treatment of the grievances.

To prove constructive dismissal, they had to show that their employers were in repudiatory breach of contract. In both cases the EAT considered that the employees’ claims failed. In Fairbrother, there had been serious flaws in a lengthy grievance procedure following the employee’s complaint of bullying in the office. However, the EAT considered that the tribunal should not have focused on procedural shortcomings but on whether the outcome – the failure to uphold the employee’s grievance – was within the band of reasonable responses so far as the employer was concerned. It was only if the employer failed this test that the tribunal should go on to consider whether the employer’s conduct could be taken as calculated or likely to destroy the relationship of trust and confidence so as to justify the employee in resigning.

In Barratt the employee had been assaulted at work by a colleague. He had taken sick leave and raised a formal grievance. His colleague had been reprimanded and demoted but not relocated or dismissed. The victim resigned claiming constructive dismissal in that his employer was, in effect, forcing him to work alongside his assailant. The tribunal found that the employer had reasonable and proper cause for its conduct. There had been a strong element of provocation by the claimant for the attack, it was completely out of character and his assailant, who had an otherwise clean record of 17 years service, had apologised. The employer was satisfied that there would be no repetition of the incident. It followed the constructive dismissal claim failed. Both claimants also brought claims under the Disability Discrimination Act (DDA). They also failed. Although Mrs Fairbrother suffered from obsessive compulsive disorder which was the reason she said that her colleagues taunted her, the evidence was that these colleagues behaved with equal rudeness to others as well. As for Mr Barratt, he argued that it would have been a reasonable adjustment under the DDA for his employer to have dismissed his assailant, thus allowing him to return to work without fear. The tribunal dealt shortly with this argument. If the decision not to dismiss the assailant was reasonable for one purpose (constructive dismissal) it must also be reasonable within the meaning of the DDA and it would have been unreasonable to expect the assailant to have been dismissed to facilitate Mr Barratt’s return to work.

Points to note –

  • Since the introduction of the statutory grievance procedures, tribunals will usually have no jurisdiction to hear complaints of unfair constructive dismissal if the employee resigns without invoking the grievance procedure first. It is only if the employee can show that they were being harassed or subjected to a ‘significant threat’ that they will not be required to raise a grievance before resigning and filing their tribunal claim. This gives employers a chance to deal with the issues before they get formalised into a tribunal claim.

  • Employers should appreciate that procedural defects in grievance, and disciplinary, hearings can be remedied by being revisited, or taken properly into account, in any appeal. Under statutory dispute resolution procedures, provision must always be made for an appeal stage which employers can use for this purpose. Employers should check that their own procedures comply with this requirement.