A recycling company in Scotland has lost a constructive dismissal case brought by an ex-employee and has been ordered to pay more than £17,000 after the judge upheld his claim.
The claimant was a driver for the company who was contracted to work five days a week. During the COVID-19 pandemic, the member of staff saw his hours reduced to 3 days per week, or 60% or his wage. Other colleagues were furloughed and therefore received 80% of their wage without having to attend the workplace.
The driver was later presented with a contract making the 0.6 working pattern permanent. The claimant made it clear from the outset that they did not agree to this unilateral change in contract. Once it came to tribunal, the judge upheld the claim for constructive dismissal and awarded both a payment for unfair dismissal and also for unlawful deduction of wages. A particular feature of this claim was that the company actually recruited staff to the same role as the claimant rather than increasing his hours back to his agreed full time contract. The company even commenced disciplinary proceedings against the employee and he received a final written warning. This led to the employee resigning and his subsequent successful constructive dismissal claim.
Public sector claims
It is by no means just smaller firms that make mistakes that lead to successful constructive dismissal claims against them. In 2021 a member of staff at East Sussex NHS Trust won a claim made after her co-workers at first ‘pranked’ her by making her believe that she had to make a significant presentation the following day. That led to further incidents in which the member of staff was excluded and her work was interfered with by others.
The way in which the NHS Trust handled this situation led to a successful constructive dismissal claim and an award of nearly £10,000. Interestingly, a worker can potentially be at fault and still make a successful claim. A Royal Mail worker who urinated in a lay-by on duty still won their constructive dismissal case. It was held that the resulting disciplinary process had more to do with his union activities and working relationship rather than this isolated incident which also had precedent among Royal Mail staff without leading to such severe disciplinary action.
Is it constructive dismissal?
ACAS provides an overview of what is legally termed ‘constructive unfair dismissal’ and any worker who requires advice on their specific can contact Employment Law Friend or another similar adviser to understand their next steps.
Any organisation is at risk of being the subject of constructive dismissal claims if it does not treat employees fairly and with dignity. Other claims have been successfully made wherein firms lacked secure and robust procedures for managing staff behaviour and performance. It is imperative that all senior staff understand the definition of constructive unfair dismissal in order to prevent it from occurring in their own workplace.
