Constructive Dismissal: The Contractual Maze

Abstract

The scheme of statutory protection in the United Kingdom established by the law of unfair dismissal in the Industrial Relations Act 1971 (UK) is sensitive to the need to accommodate the realities of the different ways in which a working relationship might come to an end. Since 1974, the view has rightfully been taken that it was not enough to regulate situations involving dismissals as generally understood where the decision to terminate is one taken and communicated by the employer. Parliament recognised that the employer’s behaviour might trigger severance of the relationship at the hands of the employee. Employees may, in response to an intolerable state of affairs, simply resign and have no intention of returning. The common law would not regard this as constituting a dismissal but it was, nevertheless, important that the employer’s behaviour still be subject to scrutiny and that the employee be furnished with a remedy should their complaint be upheld. The foregoing considerations led to the borrowing of the concept of constructive dismissal from the law of redundancy payments. Paragraph 5 (2) of Schedule 1 of the Trade Union and Labour Relations Act 1974 (UK) extended the meaning of dismissal to include situations where ` the employee terminates that contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct. Section 23 of the 1971 Act (which defined dismissal for the purposes of unfair dismissal) had failed to make provision in that regard. Thus, the employee who resigns in response to the employer’s wrongful conduct is regarded as having being dismissed for the purposes of an unfair dismissal action. In my view, the introduction of constructive dismissal was an admirable step. It provides the beleaguered employee with a measure of empowerment and allows them to bring an unsatisfactory situation to an end whilst, at the same, affording a means of access to an employment tribunal. The way in which constructive dismissal is expressed