No cure for constructive dismissal!
The Court of Appeal has reached a decision in the case of Buckland v Bournemouth University [2010] EWCA Civ 121 holding that in constructive dismissal cases, an employer is not unilaterally able to correct their actions to prevent employees claiming constructive dismissal.
Brendan Wincott, mhl’s Employment Law Compliance Officer tells us why this is a very important judgment and discusses the impact it will have on those responsible for managing staff.
“The claimant in this case was a university lecturer responsible for the marking of examination papers, who after having correctly failed a number of papers, was subjected to the unauthorised remarking of by a colleague without the claimant’s knowledge.
Once the papers had been remarked, the claimant’s was actively criticised by the employer in view of different marks being awarded as a result of the remarking process. An enquiry was subsequently set up which resulted in the employer exonerating the claimant of all criticism. However, despite this, the claimant resigned and sought to claim for constructive dismissal.
The Court of Appeal has made clear that whilst the claimant was exonerated of all criticism following the enquiry, this could not cure the employer’s breach of the implied term of mutual trust and confidence that had preceded the exoneration. As such, the employer’s subsequent actions could not take away the original circumstances that entitled the employee to resign and claim constructive dismissal.”
When asked about the case, Brendan explains that “in constructive dismissal cases, the employer will have acted in a way that has fundamentally undermined the trust and confidence in the employment relationship. Once they’ve acted in a manner, there can be no correction undertaken to remove an employer’s exposure to the claim. It was held in the present case that the choice of whether to accept such actions or not was purely one for the employee to make.”
Speaking about the importance of this decision, Brendan said “it’s imperative for employers to get things right at the outset; making a fundamental error may entitle the employee to resign and claim constructive dismissal and in view of this case the employer will not be able to correct their actions retrospectively.”
It’s clear from Brendan’s analysis of the Court of Appeal decision that managing your staff in the correct way is more important than ever. Getting it wrong will leave an employer frustrated at not being able to take any action to reduce their expose to constructive dismissal claims.
mhl has a team of experienced advisers who have practical experience of managing even the most difficult of teams which can help you to ensure you get things right first time.
If you want to learn more about this recent Court of Appeal decision and are an existing client, please call one of the team today on 08453 100 999 quoting your PCN number. If you are not already a client, but are interested in learning more about the services mhl provide, please call Katy Vaughan on 08453 100 600.
