Constructive dismissal continues to be an evolving and sometimes complex area of UK employment law. We examine two recent cases that provide valuable insight into the key principles underpinning the law and suggest steps employers can take to minimise the risk of this type of claim.
Constructive dismissal arises where an employee resigns (with or without notice) in circumstances in which they are entitled to terminate their contract of employment without notice due to the employer's conduct.
It has long been established that an employee may be constructively dismissed where the employer breaches the implied term of trust and confidence in the employment contract. A breach of this implied term can result from a one-off incident or can build cumulatively. Where the breach occurs cumulatively, this has become known as the "last straw" doctrine. Case law has established that the "last straw" itself may not be sufficiently serious to result in a breach of itself. However, it must do something to contribute to the breach and cannot be something entirely trivial or innocuous. The question is whether the employer's conduct as a whole amounted to a repudiatory breach of contract and whether the employee's resignation was in response to that breach (in whole or in part).
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