Constructive dismissal refers to an employee leaving an
organisation usually because the trust and confidence implied in
every employment contract had broken down. Workers leave jobs and
subsequently take actions against the employers.
The Court of Appeal has said that employees cannot ask a
tribunal to order payouts to compensate for the behaviour of an
employer that led to the constructive dismissal. For this they must
pursue a normal case through the courts, the Court said.
"Whilst the employer's repudiatory conduct [causing the
breakdown of trust and confidence] is an essential condition of a
constructive dismissal, it is not that conduct that effects the
dismissal. It is the employee's acceptance of it," said Lord
Justice Tuckey in his ruling. "Damage caused by that conduct is not
damage suffered in consequence of the dismissal."
The ruling helps to clarify the relationship between the courts
and employment tribunals. Tribunals were set up in the early 1970s
to deal with many employment cases and they had a monopoly on cases
of unfair dismissal, which cannot be tried in normal courts. Only
cases of wrongful dismissal, which turn on a specific employment
contract, can be heard in courts. Tribunal rulings can, though, be
appealed through the courts.
In a case in which Gillian Triggs sued her former employer GAB
Robins, an employment tribunal and the Employment Appeals Tribunal
(EAT) both conceded that Triggs would have to begin a separate
court action for compensation for lost wages or distress related to
alleged bullying by her employer.
Triggs could either launch a personal injury claim against her
former employer or a claim of breach of the implied term of trust
and confidence against it.
Both the employment tribunal and the EAT, though, had ruled that
Triggs's loss was caused by the dismissal, and that that should
include losses due to ill health caused by the employer's conduct
prior to the dismissal.
Lord Justice Tuckey expressed considerable sympathy with the
view that Triggs should be awarded compensation for the employer's
behaviour before the dismissal as well as as a direct result of
it.
"Sympathy cannot, however, be allowed to get in the way of
principle," he said. "The point, in short, was that loss of the
type identified by the employment tribunal did not flow from the
dismissal, which happened in March 2005. In so far as it was caused
by the employer, it was caused by the employer's antecedent
breaches of the implied term of trust and confidence, being
breaches which, by the time of the dismissal, had already caused
Mrs Triggs to become ill and so impaired her earning capacity."
Lord Justice Tuckey reminded the parties in a previous ruling
where Lord Nicholls of Birkenhead said that the overlap of
responsibilities is "not satisfactory" but must be policed well
because some advisers were trying to go through the courts rather
than tribunals because tribunal awards are capped and court awards
are not.
Lord Justice Tuckey concluded that any tribunal award must be
strictly limited to losses caused by a dismissal, not an employer's
conduct leading up to a dismissal.
"It is fallacious to regard those antecedent breaches as
constituting the dismissal," he wrote. "The dismissal was effected
purely and simply by [Triggs's] decision in February 2005 that she
wished to discontinue her employment. On a claim for unfair
dismissal, that entitled her to compensation for whatever loss
flowed from that dismissal."
"But that loss did not include loss (including future loss)
flowing from wrongs already inflicted upon her by the employer's
prior conduct … Mrs Triggs had an already accrued right to sue for
damages in respect of them before the dismissal."
