Introduction
Employer employee relationship is based upon mutual trust. Employee should make every effort to fulfill expectations of employer while employers have an ethical, as well as, legal duty to provide an amicable environment to their employees. Employers are legally bound to ensure a safer and unprejudiced work environment for employees. There are various laws and regulations that protect employees’ rights and ensure appropriate implementation of employees’ rights and interests at the workplace. Employers cannot dismiss employees in arbitrary manner and merely on their will and such a behavior is strictly prohibited by the employment laws of United Kingdom. This paper intends to discuss employment laws of United Kingdom with a special discussion on constructive dismissal along with discussing a legal scenario on the same issue.
Facts of the case:
As per given facts, Seth Brundle, who is victim in the respective case, started working with Tyrell Corporation in April, 2009. Initially Brundle started working with company on ad hoc basis, taking monthly pay for the sales job he performed for the company. After serving company for 2 years 4 months he received confirmed salaried post of Senior Sales Consultant on 23rd August 2012 when Brundle turned 41 years old. After receiving salaried post Brundle’s salary was revised to £20,000 per annum with commission on the sales generated by the Brundle and thirty five days holidays.
Brundle was efficient in performing his job and making regular commission of £1000 on monthly basis. The sales department is always under tremendous pressure because sales team is responsible for generating revenue and organizational financial growth. According to Brundle, all activities performed in the sales division may not be politically correct and can be referred as ‘banter’. Brundle was also not exception, hence participated in banter under pressure. However, Brundle himself became victim of intense banter which resulted in his resignation. Brundle started facing the problem in March, 2014 when he attended same sex couple marriage and pictures of same were posted on Facebook. Brundle’s colleges started making fun of him and his sexuality, and not action was taken despite of his verbal complaint to Eldon (his Boss).
John Kreese who was the main offender in Brundle’s abuse case left organization on 9th May 2014. However he send a graphic photo shopped picture of Brundle to few sales team members. The situation improved after John’s farewell. The situation became worse during annual networking summer party that was organized on 9th August 2014, when John Kreese attended the summer party from one of clients’ side. John posted the same photo shopped picture of Brundle on the event page of the Facebook during the party. People attending the party started laughing at Brundle. Through the party Brundle’s shown professional behavior but when people were leaving aggressive Brundle posted on his Facebook wall that he is not sure if he further wants to work for “a backward organization whose employees and clients are knuckle dragging pond scum”.
After party when Brundle arrived on the work on Monday he was directed to Eldon’s office by company’s lawyer. The lawyer clearly mentioned that his conversation with Eldon is protected. During conversation, Eldon mentioned to Brundle that company is planning to suspend him and he is invited for the disciplinary hearing to be held on next Monday for gross misconduct shown by him. Eldon also mentioned that He can resign from the duty before 18th August 2014 in order to avoid any dismissal before that meeting and company will pay him holiday pay and allow to leave the job without serving notice period. Eldon resign from his post on 18th August 2014 with immediate effect. However, Company did not pay him for holiday pay. Brundle has not secured any alternate employment.
Issue of the case: the leading issue on the basis of facts of the legal scenario is whether the case falls under the purview of constructive dismissal and Brundle can claim benefits under provisions of Employment Rights Act 1996.
Constructive Dismissal
As per the facts of this scenario the case falls under the category of constructive dismissal. The term, ‘Constructive Dismissal’ refers to a situation when an employee, against their will, resigns from his or her job mainly because of the breach of repudiatory contract between them. Employees are left with no option except quitting their jobs when things become worse at the workplace and a number of uncomfortable situation are created for employees by the employer.
The law that deals with the issue of constructive dismissal is the Section 95 of Employment Rights Act 1996. Section 95 c of the Act reads as, “The employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct” (Kidner, p. 182).
The Department of Trade and Industry defines constructive dismissal as “a tribunal may rule that an employee who resigns because of conduct by his or her employer has been 'constructively dismissed'. For a tribunal to rule in this way the employer's action has to be such that it can be regarded as a significant breach of the employment contract indicating that he or she intends to no longer to be bound by one or more terms of the contract” (Oshisanya, p. 432).
The common interpretation of constructive dismissal is the construction of excuses by employers to remove their employees. This removal is designed in a way that it suggests that employee himself has resigned or quit as per their own wish. Such cases have become very common in today’s world due to a number of factors. Employers want to keep their favorite employees on payroll and since termination costs much, they opt ways of constructive dismissal to give it a color of resignation.
Employees, on the other hand, resign under pressure of their employers for sake of their benefits. Sometimes they are threatened by their employers that if they do not resign, they will make sure that they do not jobs anywhere else. It becomes difficult for employees to sustain in front of powerful corporations. They are unable to counter employers’ influence and they cannot afford to fight costly legal battles against their employers so they resign and abide by the terms of their employers.
There are various circumstances that are recognized by UK employment laws as a fundamental breach of employment terms by the employer. Since employees do not quit their jobs deliberately, the constructive dismissal is considered as if it is an act of termination and employees are entitled to get benefits of termination by employers. All cases related to constructive dismissal fall under the purview of the above-said section that vows to protect rights and interests of employees who are the sufferer of their employers.
Grounds of Constructive Dismissal: there are various grounds of constructive dismissal and when any employee quits on any of these grounds, the case falls under the category of constructive dismissal.
- Lack of support to employees by employers is one of main grounds that make the case of constructive dismissal.
- Changing the terms, responsibilities and/ or content of employment terms by the employer also is a ground of constructive dismissal.
- Disproportionate disciplining and arbitrary terms of employment by the employers towards their employees.
- Harassment by employer or other senior employees and refusal to take action by employer.
- Refusal of payment, bonus or other discriminations by employers.
In case of breach of these fundamental terms of employment by employers, employees should resign without delay and they should approach the appropriate authority and present their case. Unnecessary delay in reporting incidents that breach fundamentals of employment can exploit the chances of getting remedies and the very purpose of making claim of constructive dismissal will be defeated. There are various remedies of the employees who have suffered because of constructive dismissal (Hardy).
Gilbert Vs Midland Bank is a leading case that was decided on the issue of constructive dismissal. An employee was put under various discriminations by his employer. In this case a young female bank manager was found guilty of harassing a male bank employee. The manager also compelled Mr. Gilbert, the male bank employee to mop bank’s floor. Her conduct showed that she was biased against the employee on the basis of his sex. The also used to provide various benefits to female employees while the male employees was put under various restrictions.
This case was decided in favor of Mr. Gilbert, the bank employee. It was held by John Goodman, chairman of the tribunal expressed his concerns in these words, “The inference we draw on the evidence is that Kathryn Dowse perceived Mr Gilbert as a young assertive man who posed some sort of threat to her authority as a relatively inexperienced young female manager” (BBC News). A huge damage was awarded to Mr. Gilbert by the tribunal in this case.
Goodman further raises his concerns on employer’s behavior and says, “No matter how pious and well intended those sentiments are, the employer must also take practical and active steps to ensure they are implemented. “I can say quite emphatically we do not regard the conduct of the bank as indicative of taking such steps as were reasonably practical to avoid discrimination. One illustration we find illuminating is her insistence on him participating in the mopping of the floor” (BBC News).
In Dunnachie v Kingston upon Hull City Council case, the victim asked for compensation against injury to his feelings. Dunnachie who was working with Kingston council resigned from his post because he was bullied by his colleagues. The victim filled claim for inequitable constructive dismissal. The court rejected claim made by Dunnachie by claiming that section 123(1) of the Employment Right Act 1996 Allow compensation only for the losses that can be quantified. Non-economic or unquantifiable losses cannot be compensated. However, the Court of Appeal upheld that appeal of Dunnachie and asked Kingston Council to pay compensation of £10,000 for injury to Dunnachi’s feelings. The court mentioned that not all constructive dismissal case can awarded sugoch compensation. Only those cases are eligible for compensation where employee is really suffered injuries to his or her feelings and self-respect (Taylor and Emir).
In Lancaster v Birmingham City Council case, the victim was compelled to retire early due to high level of work stress. Bullying was found a major factor behind high stress level. The victim was working with council for several years on different clerical and technical positions. In year 1993 she was allocated the position of housing officer which required her to interact with public members. Unethical behavior and abusive language were very common in public dealing, which resulted in tremendous work pressure and clinical depression. Lancaster won the case and received a compensation of £67,000 (Sutherland and Cooper).
It becomes clear after seeing all these abovementioned cases that UK employment laws are designed to protect employee’s interests from any unnecessary harassment of employers. Employees can always claim benefits if there is a reasonable ground of doing so. Various tribunals and courts have proved time and again that constructive dismissal is a restricted practice that exploits employees and various employment law intend to prohibit such arbitrary practice.
Advice as per the facts of the Case
As per provided facts, the case of Seth Brundle appears to be a case of constructive dismissal. Brundle was subjected to discriminations at his workplace. He was mocked by other employees about his sexual practices. Brundle received a cool response from his boss even after complaining about his discomfort about to his boss. As the head of an organization, it was the duty of Brundle’s boss to ensure comfort of each and every employee of his organization. In this case, the employer failed in fulfilling his duty and one of his employees kept facing harassment by other employees.
Brundle’s employer did not do anything substantial in order to stop the harassment of Brundel and instead of doing his duty, he tried to persuade Brundle to resign from his post on frivolous grounds. There was a threat in his persuasion and Brundle, being a small employee could not stand in front of illegal practices of his employer. As per employment laws of United Kingdom, Brundle have every right to claim benefits under purview of Employees Rights Act, 1996 for constructive dismissal. There are various cases that have been decided on the issue of constructive dismissal by various courts and tribunals of UK.
Brundle was mocked and people passed lewd comments on him at workplace about his sexuality. Even his photo shopped pictures were posted on social networking sites by some miscreants of the same office where he used to work. Brundle, on the other hand complained to his employer about his harassments at the workplace. He behaved in a calm manner and never reacted in a way that could have deteriorated the atmosphere of the workplace. Brundle is advised to make complain about his employer’s practice of constructive dismissal.
Brundle is entitled to claim benefits under provisions of Employees Rights Act 1996. Brundle was forced to resign by his employer. His employer persuaded to resign and threatened to take disciplinary action against him if he does not resign. What option an employee may have against corporations that are bigger in every respect. Brundle can approach nearest Citizen Advice Bureau (CAB) if he has any confusion regarding the terms and conditions of constructive dismissal.
In various grounds of constructive dismissal, sexual dismissal is an important ground. Brundle was mocked because he had attended a gay couple’s marriage. People mocked his sexual inclinations and posted his morphed pictures on the internet. Brundle was pressurized by his employer to resign once it was established that he attended marriage of a gay couple. His sexual predisposition turned out to be the main reason why he was mocked and discriminated at his workplace.
Brundle has every right to claim benefits for a case of constructive dismissal because his employer constructed a scenario to remove him from the job. There was neither any meeting to probe allegations made upon Brundle nor was he given any chance to clarify his position. In such circumstances, Brundle may seek damages. He has the option to go for damages or he may also ask his job back through appealing his case in an industrial tribunal.
Brundle may approach civil court, employment tribunal or he may opt to proceed with arbitration and conciliation proceedings through ACAS Code. If a tribunal or court finds that Brundle has an appropriate case for his claims, he may be awarded a damage by the forum. The damage in such cases is awarded as per the facts, circumstances and amount of harassment and loss of the sufferer. However Brundle should move before the appropriate forum without making any delay.
Conclusion
Having observed an overview and succinct analysis of the abovementioned case, this paper concludes that this case falls in the purview of constructive dismissal. Constructive dismissal is violation of employee’s rights and employers should not be involved in such practices. There are various provisions of UK employment law that prevent discriminatory practices against employees by employers. There are various legal provisions and agencies that ensure justice to employees and prevent employers from involving in unfair practices. Constructive dismissal is prohibited in the UK and a number of decisions by UK courts and tribunals have reiterated time and again in various cases.
Works Cited
Hardy, Stephen T. Labour Law in Great Britain. U.K.: Kluwer Law International, 2011.
Kidner, Richard. Blackstone's Statutes on Employment Law 2014-2015. Oxford, U.K.: Oxford University Press, 2014.
Oshisanya, 'lai Oshitokunbo. An Almanac of Contemporary and Comparative Judicial Restatements. U.K.: Almanac Foundation, 2014.
Sutherland, V.J., and Cooper, C.L. Strategic Stress Management: An Organizational Approach . U.K.: Palgrave Macmillan , 2000.
Taylor, S., and Astra Emir. Employment Law: An Introduction. Oxford: Oxford University Press, 2012.
"UK Female bank manager guilty of sex bias." 1 September 1998. BBC News. 23 November 2014.
