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The BMA, 54000 Doctors, and NHS Whistleblowing

Writing in 2007 in the British Medical Journal Anthony Frais criticised the decision of whistleblowers such as Graham Pink to blow the whistle on insufficient staffing where this impacted patient safety in the following terms:

Pink ignored the option not to whistleblow despite the repercussions on his career. With the odds of success against him, his action was undoubtedly supererogatory and heroic. But it is ‘heroic’ whistleblowers such as Pink who undermine the practice of whistleblowing. Doctors or nurses who do hold compelling evidence of serious malpractice may have had their decision not to whistleblow influenced by the fate suffered by somewhat naïve or perhaps over zealous whistleblowers.

The argument seems to be that because bad things happened to Pink (he was dismissed) because he raised his concerns about patient safety due to understaffing other staff who see other, perhaps more serious safety risks, may not report these because they too may be subject to detriment. The argument is, with respect, complete nonsense however true the assumptions may be. The proper response to that dilemma is instilling all health staff with the confidence that if they raise concerns about patient safety risks in the public interest they should not fear retribution from the bureaucracies of the NHS for doing so.

The furore over Pink’s victimisation in the early 1990s was a key impetus in the attempt to instill just such a confidence which culminated with the enactment of the Public Interest Disclosure Act 1998.

These legal protections are not working, as the Francis report into whistleblowing shows even for those who are able to assert the legal right to challenge their treatment at an employment tribunal.

The case of Dr Chris Day, which I summarised a couple of days ago, is a grotesque demonstration of the current inadequacy of these legal protections in the NHS. Dr Day alleges (and the parties agree) that he blew the whistle about staff shortages that placed very ill patients at unnecessary risk (the parties in the case all agree this happened and complaints were made in good faith) but alleges Health Education England – an NHS body who control a Dr’s career – victimised him because of that disclosure by blocking his ability to progress in his career. However, an Employment Appeal Tribunal (Day v Lewisham and Greenwich NHS Trust & Anor [2016] UKEAT 0250_15_0903) has ruled that because Dr Day was not employed (as an employee or worker) for Health Education England he is not a ‘worker’ for the purposes of section 43K of the Employment Rights Act 1996 and, therefore, despite the very substantial control Health Education England have on his future career prospects he cannot bring any action against them for allegedly victimising him.

The effect of the judgement is a grave one: it has found that despite the very considerable power Health Education England (and potentially other similar bodies) have over Dr’s careers and future employment they can now victimise Dr’s with impunity because so long as the Dr is not a worker they have immunity from facing challenge in an employment tribunal. As I highlighted in my last post the significance of this case is not – with all respect to Dr Day – whether he was in fact victimised for whistleblowing but whether there is any meaningful redress for any junior doctor who feels they have been victimised in their career by a ‘third party’ health body given the effective immunity from challenge that is the result of the judgement.

Enter the BMA?

Given the significance for thousands of Dr’s one would think that the British Medical Association – the trade union for junior doctors – would be leading the charge on this issue. Dr Day’s case is, however, being brought without BMA support but instead the case has been funded by an impressive crowdfunding initiative. When I first read about the case I assumed that this was because Dr Day was not a member of the BMA, but this is evidently incorrect.

The 54000 Doctors campaign, which is admittedly only one side of the issue has confirmed that the BMA did support the case only to withdraw five days before the deadline for the case to be lodged and that they have declined to support the appeal to the EAT.

The reason for the lack of support is, to quote from Dr Day’s summary, because:

Gateley [the solicitors instructed by BMA] claimed that the merits of the case had suddenly dropped below the relevant 50% threshold required for BMA support.

The “50% threshold” will be familiar to many trade union reps, a case that does not have it will not ‘have a reasonable prospect of success’ and so is not supported, a judgement that is sometimes overly cautious meaning good cases are not supported by the union (many of them then succeeding at tribunal, only without (formal) union support). However, on the facts Dr Day’s case (in respect of the appeal) probably didn’t meet this threshold for the reasons identified in the EAT judgment.

Given the significance of the case for its members this is a difficult position to be in; without a formal appellate judgement there was doubt about whether junior doctors were protected, and where there is doubt there is room for a union to collectively secure concessions. Therefore, there is an argument that pursuing a case that is likely to set an unhelpful precedent for members, even while securing gains if won would be harmful to junior doctors generally. There is merit in that argument.

It is noteworthy though that that is not the reasons given and the only reason is that the 50% threshold is not met. I am of the view – and it is certainly an argument I have had with union executives – that where a case has a strategic importance in defending a large number of member’s terms and conditions or legal protections it is often appropriate for the union to bring that case, even if they think they will probably lose; to quote the late Bob Crow “if you fight you won’t always win, but if you don’t fight you will always lose.” If nothing else, members can at least see that someone is standing in their corner defending their rights at work.

Certainly, if I were a BMA member I would be asking the union’s executive for an explanation of why it has not supported a case that has such a big impact on so many of its members and why, now the horse has bolted so to speak and there is an appellate authority (the EAT judgment), it is not now pursuing the fight and supporting an appeal to the Court of Appeal. I would also be encouraging my fellow members to be asking that same question in correspondence, to local reps and through the union’s democratic processes.

But if the decision was made not to support a legal challenge and, as set out above, I can see there may be valid reasons for that decision what I would expect is that the BMA would be doing something very significant given the 54000 members or potential members who have been shafted by this issue; it is not as if this is not an issue around which broad public support could be garnered on public safety grounds, especially in tandem with the scandal of imposition of junior doctor contracts. Why, for example, is this not a trade dispute on which separate industrial action has been contemplated?

Of course, I do not move in BMA circles so it may be that more is being done than I have said but I have certainly seen no evidence of meaningful activity or mobilisation of members on the issue (if there is such activity ongoing comments to highlight this are very welcome).

As it is though it strikes me as very unfortunate that workers have felt compelled to campaign for their rights at work outside of their trade union. I do hope that changes soon whether that approach is legal, industrial or political (or all three!).

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Jeremy Hunt: Protecting NHS Whistleblowers, except Junior Doctors

Section 43A-L of the Employment Rights Act 1996 provides that if a worker is subjected to a detriment because of their whistleblowing they have a right to complain to an employment tribunal; it is an important right that – however inadequately – provides some assurance that a worker will not be penalised for raising concerns in the workplace.

The public policy reasons for such protection are nowhere better revealed than in the persons to whom we trust our health, namely the many healthcare workers in the NHS since any mistakes or safety issues could, literally, make the difference between your or my life of death. And yet, as the circumstances of the failures of care at Mid Staffordshire NHS Foundation Trust and subsequent reviews make clear, it is here that whistleblowing protections are in need of especial protection.

Which brings us to the disturbing case of Dr Chris Day. Dr Day reported safety failings in the hospital in which he worked, failings which Dr Day felt posed a real risk to the safety of hospital patients. As a Junior Doctor, a deanery Doctor, Dr Day’s career progression was dependent on training from Health Education England (HEE), an NHS body but not a body Dr Day was employed by. Shortly after Dr Day blew the whistle his training dried up and with it any prospect of becoming a Consultant. Dr Day believed HEE’s action were because of his whistleblowing and sought to bring an employment tribunal claim that he had been subjected to a detriment because of making a protected disclosure.

In preliminary hearing the tribunal ruled that since Dr day was not employed (either as a worker or employee) by HEE he could not bring a claim against them. As the campaign website 54000 Doctors points out, if accepted, then many junior doctors could be dissuaded from speaking out about patient safety because, if they were to do so, their careers could be destroyed by HEE and they would have no legal redress. Unfortunately, in a judgement earlier this month that is precisely what the Employment Appeal Tribunal found (Day v Lewisham and Greenwich NHS Trust & Anor). The definition of worker in the ERA 1996 excludes the relationship between Dr Day and HEE and appeals to a purposive approach to statutory interpretation failed.

Having read the case there are two comments I would make.

First, the case, which was disappointingly brought without BMA support, was always likely to be lost – valiant though the appeal to purposive approaches was there is no EU protection for whistleblowers so the analogy with the Equality Act was going to be tenuous.

Second, however “right” the decision may be from a statutory interpretation point of view it is plainly wrong from a public policy and political viewpoint. I hope the appeal can proceed (as it is only at the higher appellate levels there is any prospect of this injustice being righted) but the issue is as much political as legal. I have raised the matter with my MP and I would urge others to do the same with their MPs.

The fact is I do not know whether Dr Day was subjected to a detriment because of his whistleblowing by HEE. However, what I do fervently believe is that as a matter of public policy it cannot be right that a public body could subject a worker to a detriment and destroy a career and warn off thousands of other Doctors from speaking up in order to improve patient safety without any possibility of that Dr challenging that decision. That is not only a disservice to junior doctors but could also place patients at risk or serious harm.

Cases Referenced

Day v Lewisham and Greenwich NHS Trust & Anor [2016] UKEAT 0250_15_0903

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Hearsay

Over on Secret Barrister there is a superb post on hearsay evidence in criminal trials. This comes in the wake of media fury that Clayton Williams, convicted of the manslaughter of PC Dave Phillips but acquitted of his murder, allegedly signaled what could be interpreted as an intention to run over PC Phillips in the moments before he tragically killed the policeman. This of course would be relevant because, to establish murder a jury must be satisfied that the accused “intended to cause serious harm or death.”

The Secret Barrister comments:

After Williams was acquitted by the jury of murder, the jurors seemingly not satisfied that Williams drove deliberately at the officer, newspapers have reported that Williams’ co-accused, Philip Stuart, who was in the stolen car at the time, told police officers when he was interviewed that Williams had said “Watch this” before driving into PC Philips. The jury were not told about this during the trial.

Why? Is this not critical evidence of Williams’ intent? What went wrong?

In short, nothing. It’s simply because, in a trial of multiple defendants – let’s call them A and B – the law does not allow for statements made outside a courtroom by one co-defendant (B) to be admitted in evidence against the other (A). In law it amounts to hearsay, as B’s statement was not evidence given in court, and A has not had the opportunity to challenge B on its accuracy. Where A and B are both on trial, and where B repeats in his evidence on oath what he said to the police in his interview (e.g. “A drove at the officer and said “watch this””), then it becomes evidence and can be used against A. But where, as in this case, B gives the police an account, and then pleads guilty, he is not a party at trial and so what he said to the police in his interview cannot be used against A. Indeed, to avoid prejudice to A, the jury will not even hear about B’s interview.

Put that way there are good reasons why hearsay evidence is not allowed in criminal cases and perhaps the real question the press should be asking is why those prosecuting the case decided not to put forward evidence so that it could be tested and relied upon in court.

hearsayIn an employment context however I find many employees, perhaps influenced by notions of the inadmissibility of hearsay evidence in criminal trials, will cry foul when hearsay is a part of their misconduct disciplinary. The simple fact, as Naomi Cunningham notes, is that there is no such rule in an employment tribunal context (or workplace investigation context). Hearsay evidence can be heard and is in fact frequently heard by tribunals.

Clearly however, hearsay evidence is problematic and poses risks for whether fair processes has been followed; and in my experience some employers, upon hearing that hearsay is not in principle excluded from consideration will use such evidence to ‘fill in the blanks in the case’. There are I think serious problems with this approach and employees should be sure to challenge any use of hearsay evidence in disciplinary proceedings.

This challenge is often based on two grounds. First and foremost hearsay evidence, like anonymous evidence, places an employee at a disadvantage in that the employee is not given adequate opportunity to challenge the evidence. Where evidence is of the hearsay variety there are serious possibilities in illegitimate ‘score settling’ motivations behind the evidence such that these are among the rare cases where requests to cross-examine the evidence giver should be made. Where that is refused, as it often will be, this may itself make any subsequent dismissal unfair (see TDG Chemical Ltd v Benton [2010]).

There is also an analogy here with the situation that is presented to employers in the case of anonymous evidence where employees should resist in that there is inadequate investigation of the motives of the anonymous allegation.

Core to this ground of complaint is the employer responsibility to conduct a fair investigation – any investigation that fails to adequately assess motive, put the ‘hearsay’ evidence to the employee or looks for corroborative or exculpatory evidence may give an employee an opportunity to pursue an unfair dismissal case on the basis that the investigation was not reasonable.

Second, in Snowball v Gardiner Merchant the EAT found that whilst hearsay evidence may be considered in tribunal proceedings it s often appropriate for tribunals to place limited weight on hearsay evidence that is not subject to cross-examination. A similar argument is appropriate in disciplinary proceedings where it can be argued that no or little weight should be placed on such evidence, especially if not backed up by the opportunity to cross examine that evidence or corroborative evidence. Where it is just hearsay evidence then it will often be argued that it is appropriate to favour the evidence of the employee or even, as set out in Roldan, to decline to come to a view and therefore give the benefit of the doubt to the employee.1

 

Cases Referenced

Snowball v Gardiner Merchant [1987] ICR 719

Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721.

TDG Chemical Ltd v Benton [2010] UKEAT 0166_10_1009

  1. In Roldan LJ Elias commented on the requirement that an employer must have a reasonable belief that an employee engaged in misconduct as follows: “Employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point. Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. That is not the same as saying that they disbelieve the complainant. For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged. In my view, it would be perfectly proper in such a case for the employer to give the alleged wrongdoer the benefit of the doubt without feeling compelled to have to come down in favour of on one side or the other.”
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Knowledge of Disability in Recruitment Processes

It is (in most cases) unlawful to not select a candidate to a job because they are disabled or for reasons related to their disability. It is difficult to be precise but it is a rare employer where the success rates of disabled candidates applying for posts equals the success rates of non-disabled applicants.

Anecdotally, employees in the civil service with visible disabilities have reported to me that when they are interviewed for a post the minute their cane, wheelchair, or walking frame are seen the interviewers switch off – in terms of job prospects they know their chances of success are next to nil.  Of course, proving disability discrimination in such circumstances is difficult.

With the passing of the Equality Act the Labour government took decisive action to prevent discrimination in recruitment by enacting section 60 of the Act:

(1)A person (A) to whom an application for work is made must not ask about the health of the applicant (B)—

(a)before offering work to B, or

(b)where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work.

This clause prohibited, except in certain situations, an employer making enquiries into an applicant’s disability or health until a decision to appoint a person or select a shortlist for a post had been made. It is not hard to see the rationale for the prohibition. Prior to this is was customary for employers to require health checks or details of ‘absence history’ before selecting a candidate whereupon, like the anecdotal scenario above, the employer suddenly decides the candidate is not a ‘good skills match’ for the post before wishing them the best in their future career. The prohibition on asking such questions has the purpose to “prevent disability or health information being used to sift out job applicants without first giving them the opportunity to show they have the skills to do the job.”1 If an employer does not know a person is disabled the innate prejudice of recruitment processes that discriminate against disabled applicants cannot be in play. It is an idea with which the present government seems enamored since it is, it says, seeking to follow a similar approach with ‘name blind’ applications.

However, there is a downside to this approach. Where an applies as an external candidate2 arguably it makes the prospects of enforcing the law in a tribunal setting more difficult.

With the possible exception of a claim for indirect discrimination if an employer does not have knowledge of disability then Section 60 provides a potential shield for an employer to evade liability. The possibility is highlighted by Rachel Crasnow QC writing shortly after enactment and before she was made a silk:

While this legislation may prevent the screening out of applicants who might otherwise be barred without the chance to demonstrate their skills and competencies for the job, could such a prohibition operate in the employer’s favour when it comes to arguing lack of knowledge for the purpose of disability related discrimination?
An employer will not be liable for discrimination arising from disability under section 15 of the Equality Act where it did not know and could not reasonably have been expected to know that the employee had the disability. It might be that the very provisions brought in pursuant to section 60 to protect disabled job applicants will actually be used against them once employed, to the advantage of employers. The prohibition on pre-employment health enquiries could enable employers to practice a “don’t ask” evasion policy or practice deliberate ignorance, in order to avoid liability for disability discrimination claims.
How does this fit with the employer’s duty to do all they can reasonably be expected to do to find out if a person has a disability? The provisions of section 60 will not stop employers from asking medical questions post job offer. This opportunity enables reasonable adjustments and fulfils the knowledge requirement, as well as providing an applicant with the chance to argue that an employer was unreasonable in not making such enquiries at this legitimate stage.
The potential clash between the knowledge requirement
and the bar on pre-employment health inquiries is likely to come down to questions of reasonableness and how the courts interpret the exceptions to the general rule within section 60. However there are bound to be cases where the employer argues the knowledge requirement is not satisfied since at the key stage of inquiry it was not reasonable to ask a Claimant if she or he suffered from a disability due to the prohibition in section 60.
From the employers’ perspective, it’s not just a question of avoiding pre-employment health questions for the same reasons as being wary of asking women of a certain age if they plan on having children, or applicants of a certain age what their retirement plans are, it could also assist them in defeating claims brought by actual employees – far from what the Government intended.

The criticism is certainly a valid one although, on balance, I think the introduction of section 60 is still a step forward for worker protection , not least because of the difficulty of enforcing rights in the ET procedurally, with the imposition of ET fees and the lack of equitable remedies for discrimination complaints even where proved.

In my view the problem is not so much the protections of section 60 but the requirement for knowledge of an applicant’s disability to be known by a prospective employer rather than an anticipatory principle being applied,3 as it is in a civil context. Even if not applied in toto in an employment context (and I am not sure why an employer should show more of a proactive approach to its customers than it does to its employees) in a recruitment context where there is not the same meaningful opportunity to notify an employer of disability there seems to be more of a case.

  1. EHRC, Pre-employment health questions: Guidance for employers on Section 60 of the Equality Act 2010, 3
  2. Section 60 applies to internal candidates as well but since the employer is the same what follows regarding knowledge of disability would be less likely to apply in these circumstances.
  3. The EHRC explains that in respect to the duty in a civl non-employment context “The duty is ‘anticipatory’. This means you cannot wait until a disabled person wants to use your services, but must think in advance (and on an ongoing basis) about what disabled people with a range of impairments might reasonably need, such as people who have a visual impairment, a hearing impairment, a mobility impairment or a learning disability.”

 

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Constructive Dismissal with Notice

When an employer commits a serious breach of contract that an employee believes undermines their contract common law dictates that they have two choices. They can:

  • Accept the breach and continue working (perhaps because the employees would face destitution if they were not not do so)
  • Resign their employment (making sure they inform the employer of the reasons for the resignation and that it is in response to a breach (see Mruke v Khan).

If they resign then they will have two potential legal claims open to them:

  • A claim of wrongful dismissal
  • A claim claim for constructive (unfair) dismissal

Although often claimed together they are distinct claims, one is a common law claim and the other a statutory claim under the Employment Rights Act 1996.

In this post I want to consider the situation of the employee who is required by contract to give three month’s notice to end their employment and has been subject to a campaign of bullying by their line management. Bullying by an employer is certainly potentially a fundamental breach of the duty of mutual trust and confidence which justifies an employee’s resignation.

If a decision to resign has been made should the employee resign immediately or should they resign with notice? Here the answer, I think, depends on the circumstances.

In the case of Wrongful Dismissal there is a presumption that any resignation must be, if not immediate, very prompt.  The view is summarised in Norwest Holst v Harrison where, in an obiter comment (not representing the decision of the majority of the court), Sir Denys Buckley commented that “[t]he effect of an acceptance of an anticipatory repudiation must, in my view, be the immediate termination of the contract.  By accepting repudiation, the innocent party elects to treat the contract as abrogated at the moment when he exercises his election.” In short, where faced with a fundamental breach of contract the employee wishing to resign in response must resign (i.e., stop working) promptly.

Where they do not stop working an employee risks a Tribunal finding that by continuing to work an employee has ‘affirmed’ the breach and thereby accepted it meaning any further reliance on that breach is impermissible. An example of this can be seen in Simms v Sainsbury Supermarkets Ltd: Sainsburys had refused to pay the claimant the full salary to which she was entitled to which was found to be a fundamental breach of contract that would justify the employee in resigning in response to this. However, the claimant waited several weeks before deciding to resign in response and, because of this delay, the claimant was found to have accepted the breach (the EAT found the contract had been affirmed a mere four weeks after the employer’s decision – see paragraph 32-33). Therefore, the claimant could not succeed in a claim of wrongful/constructive dismissal.

In the context of a wrongful dismissal claim therefore whilst it is difficult to be precise as cases are fact based any claimant seeking to rely on a wrongful dismissal claim should not delay their resignation, and certainly not for more that a couple of weeks. The longer the delay the more likely a Respondent will be able to claim that even if there were a breach that breach has been accepted by the claimant. The employee in our scenario would therefore probably forsake his right to claim wrongful decision if he did not respond promptly to the breach by resigning without notice.

In a constructive (unfair) dismissal case the position is more ambiguous than the normal presumption that a resignation must be “without notice”. Section 95(1)(c) of the Employment Rights Act 1996 sets out that where an employee “the 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” that dismissal may be unfair. This is important because, in practice, compensation for unfair dismissal is more generous than wrongful dismissal.

The important section of the legislation for the question at hand is the recognition that a claim can be made when the resignation is “with or without notice.” It would seem therefore that where notice is given that an employee resigns and that notice is served then, unlike wrongful dismissal, a claim may still be entertained. The words “with or” were not in the antecedent legislation and were added, says Lord Denning “because it was realised that sub-section (c) as enacted in 1965 left a gap. A man who was considerate enough to give notice was worse off than one who left without notice” (Western Excavating v. Sharp).

Denning continues to provide a statement of the concept of statutory constructive dismissal:

If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.

In the highlighted section therefore Lord Denning seems to accept that notice can be given by an employee with the employee continuing to serve and a statutory constructive dismissal claim being validly made.  Whilst s. 95(1)(c) certainly recognises a worker can claim constructive unfair dismissal if they resign with notice in response to a repudiatory breach I do not read into Lord Denning’s a clear statement that a person who resigns in response to a breach but serves out their contract will not have affirmed the contract, given in a statutory unfair dismissal claim given this is, as Lord Denning himself notes, is still based on contract law. His own summary above concerning the man who may resign with notice is still a person who must “make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.”

To date I have still seen no authoritative statement that a person who resigns in response to a fundamental breach of contract but who serves notice will not risk affirmation if they serve their notice – clearly that risk may be higher for a employee with a 12 month contractual notice period compared to an employee with just a week’s notice!

However, the case of Cockram v Air Products Plc, an EAT case, is helpful on this point. In Cockram the claimant believed his contract had been fundamentally breached and he had a contractual notice period of 3 months. However, he in fact gave seven month’s notice to his employer.

Interestingly, given my reservations above it was “common ground that section 95(1)(c) ERA varies the common law contractual principles discussed above for the purposes of a statutory claim of unfair dismissal by giving an employee the right to resign on notice without being treated as having affirmed the contract.” This gives a good ground (although perhaps not impenetrable?) that a person who resigns giving their contractual notice period may still pursue a constructive dismissal claim under the ERA 1996.The judgement further set out that “whereas at common law the giving of any notice to terminate the contract would amount to affirmation of it, under s.95(1)(c), the fact of giving notice does not by itself constitute affirmation.”

The relevance for employee representatives is it is not unknown for an employee to approach a union rep after they have resigned and with no understanding of their own legal rights, and if notice has been worked it a constructive dismissal claim may still be a possibility. 

Given all the parties agreed affirmation could not be found from working contractual notice period the question was whether working more than this still constituted a dismissal. The claimant argued that since s. 95(1)(c) referred to notice and not contractual notice where a longer than required notice period was worked this did not prevent a constructive dismissal claim upon the expiry of that notice being completed.  The argument was given short shrift and found that where a claimant “gives notice in excess of the notice required by his contract, he is offering additional performance of the contract to that which is required by it.  That additional performance may be consistent only with affirmation of the contract” (emphasis added).  Therefore, despite resigning with notice the claimant affirmed the contract by providing more performance than was contractually required and so the unfair dismissal claim was correctly struck out.

In the example above therefore the claimant who responded to bullying by resigning and working out is notice would probably be entitled to pursue a claim of constructive unfair dismissal but, in the circumstances, close attention would be paid to the nature to whether the contract was really repudiated in that period as that may well be a ground of defence a Respondent would put forward.

To me there are a few principles that arise from this case for reps:

  • If a decision is made to resign (and reps should not as a rule be recommending that) then the decision should not be delayed and should be communicated promptly explaining the reasons for the decision.
  • To claim wrongful dismissal a resignation should be without notice but a claim may be made for constructive unfair dismissal is contractual notice was worked.

Cases Referenced:

Cockram v Air Products Plc [2014] IRLR 672

Mruke v Khan [2014] UKEAT 0241_13_2507

Norwest Holst v Harrison [1985] ICR 668

Simms v Sainsbury Supermarkets Ltd [2005] UKEAT 0548_04_0903

Western Excavating v. Sharp [1978] QB 761