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Constructive dismissal
[ch 3: pages 32-33]An employee whose employer fundamentally breaks (or “repudiates”) the contract of employment is entitled to resign and claim unfair dismissal. However, a claim for constructive dismissal should only ever be considered as a last resort. The following case shows how complex and risky this course of action can be.
Mrs Triggs was absent from work suffering from anxiety and depression as a result of overwork and bullying. She had almost exhausted her sick pay entitlement when she resigned due to the employer’s failure to deal effectively with her grievances. The Court of Appeal confirmed that in a claim for unfair dismissal, an employee is only entitled to recover compensation for losses resulting from the dismissal.
Mrs Triggs had suffered substantial losses, including all the lost full pay that she would have earned prior to her resignation had she not been off sick, and future losses due to her on-going inability, as a result of psychiatric injuries caused by her employer, to find work following her constructive dismissal.
The Court of Appeal ruled that these losses resulted not from the dismissal, but instead from the bullying behaviour leading up to the dismissal. These losses are not recoverable in a claim for unfair dismissal in the Employment Tribunal. To pursue these losses, Mrs Triggs would have had to bring a claim for personal injury in the civil courts (see below for examples of these kinds of cases).
GAB Robins v Triggs ([2008] EWCA Civ 17)
Note, importantly, that if the employer’s behaviour leading up to the dismissal had amounted to discrimination, Mrs Triggs would have been able to bring a claim for unlawful discrimination in the employment tribunal. In contrast to claims for unfair dismissal, discrimination claims can include compensation for injury to feelings and personal (including psychiatric) injury resulting from the acts of discrimination. Again in contrast to unfair dismissal claims, there is no limit to the amount of compensation that can be awarded in a claim based on unlawful discrimination.
And the House of Lords case of Dunnachie v Kingston –Upon- Hull City Council (2004) IRLR 727, sets out the principle that you cannot claim compensation for injury to feelings in an unfair dismissal claim.
However, unlawful acts of discrimination at work will often be only one of many stressors in an individual’s life, contributing to their mental health difficulties, and employers faced with a claim for compensation based on work-related stress are often keen to show that other factors, unrelated to work, such as pre-existing mental health problems, relationship breakdown and so on, are the main cause of the employee’s problems.
This can be one of the most difficult and unpleasant aspects of this kind of claim. This was the situation in Thaine v London School of Economics [2010] UKEAT 0144, where the EAT reduced the claimant’s compensation to 40% of its original amount, to reflect the fact that other factors, such as a deteriorating relationship with her boyfriend and pre-existing mental health problems such as obsessive compulsive disorder, contributed to Ms Thaine’s poor psychiatric health, alongside the employer’s unlawful discrimination.