Constructive dismissal can happen by mistake
In order for an employee to be entitled to resign and claim constructive dismissal, they must show that they are reacting, within a reasonable time, to a repudiatory breach of contract by the employer i.e. something that goes to the root of the contract.
In the recent case of Roberts v Whitecross School, the claimant resigned because he was told that he was going to receive half rather than full pay if he remained on sick leave. This was as a result of the employer’s honest, but mistaken, view of the relevant term of his contract of employment.
Even though the employer had not intended to break the contract, the EAT decided that there had been a fundamental breach because the employer had acted on its mistaken belief. The claimant had been entitled to resign and claim constructive dismissal.
Points to note –
- The general rule is that failure to pay wages when they are due will amount to a repudiatory breach of contract.
- The EAT acknowledged that there might be occasions when failure to honour a pay term, if it arose from an error or simple mistake, might not amount to such a breach. However, in this case, the claimant’s trade union had made it clear that there was an issue about the meaning of the contractual term, the employer insisted that it would go ahead regardless and the claimant resigned promptly – all the conditions for a constructive dismissal had been fulfilled.
Other cases on the employment case law update for September 2012:
> Constructive dismissal: Assamoi v Spirit Pub Co
> Redundancy: Wrexham Golf Club v Ingham
> Restrictive covenants / directors': Safteynet Security Ltd v Coppage
> TUPE / unfair dismissal: F&G Cleaners v Saddington