Actions and words both speak loudly in constructive dismissal

For employees getting the wording right in a resignation letter in order to be able to claim constructive dismissal is key. For employers, this could be an area for challenge.

A recent decision in the Employment Appeal Tribunal (“EAT”) highlights the importance of the wording used by an employee in their resignation letter prior to bringing a claim for constructive dismissal.

What is constructive dismissal?

An employee is entitled to bring a claim for constructive dismissal where they can show that their employer has breached a term of their employment contract so seriously that they are entitled to resign and turn that resignation into a dismissal and treat themselves as constructively dismissed. Future unemployment needs to look unworkable.

What happened in this case?

The case of Ogilvie Construction Limited v Brown involved an employee with very long service who had worked his way up to a position as general foreman. Whilst working on a particular project he was promoted to site manager which brought with it greater responsibility and as a result, much longer working hours.

The employee complained a number of times about his working hours but he felt that his employer did not take any action to manage his workload. Eventually the hours took their toll and the employee handed in his notice in an email with the title “4 WEEKS NOTICE” which stated “Just to confirm I would like to give you notice to finish up in 4 weeks from this position”.

The employee then brought a claim for constructive dismissal and relied on the fact that his employer had breached its contractual duty by requiring him to work excessive hours and by ignoring his subsequent complaints. The Employment Tribunal and the EAT both agreed that the employer’s actions amounted to a fundamental breach of contract which entitled the claimant to resign and claim constructive dismissal.

What was the EAT’s decision?

The employer attempted to appeal against the Tribunal’s decision on the basis that the employee’s evidence confirmed his intention was not to give notice to terminate his employment completely, but rather to return to his original role as general foreman. If the employee had not resigned from his employment entirely he could not have continued with his claim for constructive dismissal.

The EAT dismissed the employer’s appeal as the surrounding circumstances of the employee in providing the employer with notice all suggested that he had resigned. The employer sent a letter accepting the resignation and arranging the mechanics of bringing employment to an end. The employee did not react to this letter or try to argue that there had been a misunderstanding. The EAT accepted the Tribunal’s conclusion that the claimant’s resignation email was unambiguous and he was entitled to bring a claim for constructive dismissal.

This case is a stark reminder not just of the importance of the wording of resignation letters but also the circumstances surrounding providing notice to terminate employment. Another point to think about is whether the employee has delayed in providing resignation. If yes, this could make the breach in question look less serious. We regularly advise from both sides of the fence giving pragmatic advice to employees and employers and we always recommend obtaining legal advice in situations where there may be greyness before taking any action where at all possible.