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Was she pushed or did she jump?

It has been widely reported that the former Chelsea FC team doctor, Eva Carneiro, is bringing a claim for constructive dismissal against the football club following her demotion from first team duties.

Little is known about the details of the claim at this stage but Employment Lawyer, Paula Stuart, explains what an employee has to show to succeed with a constructive dismissal claim.

In order for there to be a constructive dismissal the employee must:

  1. Show there was an actual or anticipatory breach of contract by the employer. The breach must go to the root of the contract so as to be sufficiently serious to justify the employee’s resignation without notice; and
  1. Resign in response to the breach; and
  1. Not delay too long in terminating the contract in response to the employer’s breach, otherwise the employee may be regarded as having accepted the breach.

The employer’s breach of contract must be serious. It is not sufficient that the employer has behaved unreasonably.  It must behave so badly that an employee is justified in resigning. The breach of contract does not have to be a one-off act. It may be a series of acts that when taken together amount to a serious breach. This is often referred to as the ‘last straw’ doctrine.

Employees will often allege a breach of the implied term of trust and confidence, which is a fundamental term of every contract. In such cases the employee must show that the employer has acted in a way to destroy or seriously damage the relationship of trust and confidence between them.

In most cases the employee is expected to inform the employer of the breach to give the employer the opportunity to rectify the breach. This is usually done by the employee lodging a formal grievance. If the employee resigns before lodging a grievance then it may be harder to win a claim as the employer may argue that it was not aware of the breach and had it been so it would have rectified it. Even if successful then the Tribunal can reduce compensation if the employee unreasonably failed to raise a grievance in line with the ACAS code of practice.

This is a complex area of law so if you are an employee or employer dealing with a potential claim of constructive dismissal then contact Paula Stuart on 01908 689345 or pstuart@geoffreyleaver.com who can advise on what steps to take to avoid an Employment Tribunal Claim.