Employee Resignations – The Straw that Breaks the Camel’s Back
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When a troublesome employee resigns, the employer may consider itself lucky to have got rid of the problem, but the resignation is often the start of far worse to come.
An employee who resigns may be able to sue the employer for constructive unfair dismissal in an Employment Tribunal …for up to £66,200. |
An employee claiming constructive unfair dismissal must show that the employer has committed a serious breach of the employment contract. The employee must have made it clear that he regards himself as having been constructively dismissed, and that he has not waived that breach by delaying his resignation or by doing something which may be considered as affirming the changed contract.
Examples of a breach of contract that may lead to successful claims for constructive dismissal include a reduction in pay, a complete change in the nature of the job and failure to follow disciplinary procedures, as well as acts of discrimination.
In the present climate, employers are frequently offering employees a reduction in hours or pay in order to avoid redundancies and retain a valuable workforce for when business picks up. Making such fundamental changes to the employee’s terms and conditions of employment, however, requires employees’ express agreement to ensure they don’t resign and claim constructive unfair dismissal.
The key when introducing a change to the contract of employment is to obtain written agreement to the change from each employee.
Even where no specific change is being made to the express terms of the employment contract, the employee may still, in some circumstances, try to claim that there has been a breach of an implied clause that has breached the trust and confidence of the employment relationship. So the bad news for employers is that, even if they have not made any specific change to the contract, they are still at risk of resignations leading to claims for breach of contract for matters implied into the employment relationship.
Employees who resign claiming that there has been a breach of trust and confidence have a difficult burden of proof; there has to be a genuine dispute and a “straw that breaks the camel’s back”.
In recent months, case law concerning constructive unfair dismissal has favoured the employer. Tribunals are seemingly taking a harder line on employees who consider they can bring a Tribunal claim on the back of a resignation.
In all circumstances concerning constructive unfair dismissal from resignations, questions are asked as to the employer’s conduct when managing the employee, including whether there has been good and proper use of disciplinary and grievance procedures.
Good employment practice requires that communication with employees be open and documented, with any express or implied changes to the contract being clearly set out. Correct and thorough use of the procedures can help avoid any unnecessary resignations and claims that can be costly to defend - however worthless they may appear.
Our specialist Employment Unit is always happy to provide advice, whether you are an employer or an employee. Please contact our team on 020 7749 2700, or email:
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