Following a recent Scottish EAT case it appears that it is possible for an employee to base their constructive dismissal claim on their employer’s treatment of other employees.
In the case of Hunter v Timber Components, H resigned from his job as a joiner because he was no longer prepared to witness how one of the company’s directors treated the other staff. H claimed the director was 'intimidating and arrogant in the way he spoke to staff' and that he bullied younger members of staff, although H himself was not the direct target of the director’s bad behaviour.
The EAT held that the ET had correctly considered whether, without reasonable and proper cause, the director had conducted himself in a manner which had destroyed or seriously damaged the relationship of confidence and trust between H and the company so as to amount to a breach of H’s contract of employment. In a constructive dismissal claim you would normally expect the employer's conduct to be directed at the complainant employee. However, the House of Lords case of Malik established that the relationship of trust and confidence between employer and employee could be destroyed by conduct that is not directed specifically towards the employee. The EAT confirmed that a tribunal should look at all the circumstances as a whole when deciding if the duty of trust and confidence had been breached, including conduct towards an employee's colleagues. Based upon the facts of the case the EAT dismissed H’s claim of constructive dismissal as the director's conduct was found to not amount to a repudiatory breach of his contract.
Best Practice
In constructive dismissal claims the employee has the burden of proving that their employer's conduct amounted to a repudiatory breach of their contract of employment. While claims based on the employer's treatment of other employees appear possible they will be even more difficult to prove than normal constructive dismissal claims. However, employers should be aware that not only their conduct towards an employee but their conduct as a whole, including that directed to third parties such as work colleagues, can be taken into account when assessing if their has been a repudiatory breach.
If you require advice in relation to any claims of constructive dismissal, please contact Matthew Welch on 0117 314 5414.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
