August 5, 2011 12:40 pm
The recent conclusion of the BBC’s Apprentice always brings to mind a whole spectrum of management styles, and whilst employers know that in general for dismissals to be fair , a proper process must be followed, immediate firings Alan Sugar style may find you in the Employment Tribunal.
However more interesting is perhaps the situation of constructive dismissal where the employer does not dismiss the employee, but the employee resigns and can show that they were entitled to do so by virtue of the employer’s conduct. To be successful in a constructive unfair dismissal claim in Tribunal an employee must resign without delay (although they can give notice) as a result of the breach.
The reason this area is so interesting is that what amounts to a breach of contract which causes an employee to resign is to a large extent subjective, because one persons management style (think Gordon Ramsey) is another persons bullying, and what one employee will accept as reasonable another might object to. This can make for a difficult situation for employers. Some industries are notorious for tough management and general behaviour and language will differ greatly from industry to industry
The recent case of McBride v Falkirk Football Club is interesting, and a clear illustration that regardless of conduct that is widely considered normal, this will not prevent employees saying that that standard was one which was a breach of their contract.
In the EAT case, a football coach, who was the club’s under 19’s team manager and head coach, was told he would manage the U19 team without interference. Subsequently he was informed, out of the blue, that a new ‘youth academy director’ would be responsible for picking the U19 team in future.
The EAT, reversing an employment tribunal’s decision, held that McBride was entitled to resign and claim constructive dismissal. initially an employment tribunal was prepared to excuse the lack of consultation because it considered that an “autocratic style of management” was the norm in the football world but the EAT overruled and said the standard of conduct to be expected from an employer, in terms of the duty of trust and confidence, is an objective one and not confined to the particular industry in question. It was no defence for the employer to say that, because other employers treated people badly, it is entitled to treat its own employees badly and avoid liability for constructive dismissal
The implied term of an employment contract that the employer will not conduct itself in a manner likely to destroy or seriously damage the relationship of trust and confidence between employer and employee means an employer must treat an employee with appropriate respect and the culture of a particular industry sector does not excuse a lack of courtesy towards employees. Employers in more usually robust environment should therefore be alert to this and treat any signs of discontent seriously, and ensure they do not ignore standard HR practices which may help them prevent claims by dealing in an objectively reasonable way with employment matters.
For more detailed information please contact Victoria Young on 01473 230033 or email email@example.com
The above is general comment only and individual advice should be taken
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