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FL Memo Ltd © 2007 |
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Employment Memo 2007 Newsletter Issue 2 |
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RECENT CASES |
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Ending employment Constructive dismissal Last straw ¶8234, ¶6730 An employer will breach his duty of trust and confidence if, without reasonable and proper cause, he conducts himself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence which should exist between him and the employee (see ¶1245). In this case, an employee T suffered for three years from an excessive workload, and was bullied by her supervisor. She was signed off from work, suffering from anxiety and depression. Her employer refused to take any measures to remove her from control by the supervisor. Ultimately, she resigned, claiming unfair dismissal, and arguing that the employer’s refusal had been the “last straw”. The EAT held that the employer’s failure to carry out an adequate and proper investigation into T’s grievances added materially to the distress already suffered by T, so as to amount to a breach of the implied term of trust and confidence. Accordingly, it accepted the employee’s analysis that this was a last straw case. The employer argued that his conduct should be judged in light of the recent EAT case of Abbey National plc v Fairbrother (see update to ¶1245), which held that employers have a measure of discretion in their conduct of their relationship with employees, and that where an employee claims a breach of the duty of trust and confidence by an employer, the employer’s conduct should be judged on whether it was within a range of reasonable responses. The EAT took a different approach, holding that Fairbrother was relevant to cases where an employee resigned in protest at the operation of a grievance procedure, but it was not relevant to last straw cases, such as this one. GAB Robins (UK) Limited v Triggs [2007] EAT case 0111/07 Unfair dismissal Relationship between Polkey-reversal provision and Polkey compensatory reduction ¶¶8436+, 8628, 8630+, 8665 A failure by the employer to follow a procedure (other than a statutory dismissal and disciplinary procedure) will not, by itself, be regarded as making the employer’s action unreasonable if the employer can demonstrate that he would have decided to dismiss the employee in any event had he followed the procedure (s 98A(2) ERA 1996 and see ¶8436). This effectively reverses the common law concept formerly known as the “Polkey principle” and is called widely referred to as the “Polkey-reversal” provision or section. Where there is an unfair dismissal, with regard to calculating an unfair dismissal compensatory award, the tribunal must still take into account whether the employment may well have terminated anyway had a fair procedure been followed (see ¶8630). This is commonly known as the “Polkey reduction” and applies equally to procedurally unfair dismissals (i.e. the employee would have been dismissed in any event had a proper procedure been followed) and substantively unfair dismissals (i.e. the dismissal would have occurred in any event at a later date for a different fair reason). |