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Constructive Dismissal

25th April 1981, Page 54
25th April 1981
Page 54
Page 54, 25th April 1981 — Constructive Dismissal
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Which of the following most accurately describes the problem?

Employers Conduct. Action by employers which may entitle employees to leave without notice and claim constructive dismissal includes unilaterally imposed changes in terms and conditions of employment. Employers may always agree such changes with employees — if not, Constructive Dismissal may ,take place.

(a) Place of Work. Employment contracts rarely define this — if they do, tribunals follow it; if not, place of work is ascertained by reference to where employees can be required to work. Usually this comprises the depot or office block, not just the vehicle or room, where employees work.

Employees cannot be required to move beyond their place of work without an express or implied mobility clause. This can be reasonably implied where the nature of the work requires it — long-distance driving, for inst,ance. To limit a mobility clause requires agreement of both parties.

(b) Job Content. To determine this, tribunals first consider job title and reject any narrow definition. Contractual duties may be extended during the course of the employment contract provided they do not conflict with a specific job title. Similarly, the emphasis may be shifted — people employed as "Driver/Storekeeper" for instance — provided the employee's work remains intact.

Where employers are reorganising the firm, instructions to employees, though technically in breach of contract, may still be reasonable.

(c). If employers are contractually bound to pay wages — weekly to drivers, for instance — any delay constitutes repudiatory conduct, regardless of amounts involved. More senior employees who know of the firm's financial position — transport managers, perhaps — should be more tolerant of delays, especially if it appears salaries will eventually be paid.

Whether employees are contractually entitled to pay rises is unclear, but if one was agreed with a depot manager to maintain his differential or if one is arbitarily withheld from one driver when all his colleagues received one, this constitutes breach of contract.

Contracts may permit pay reductions — often as disciplinary measures. If not, pay reduction is a fundamental breach of contract. So too is withdrawal of fringe benefits, such as free transport, which are of a serious nature.

(di Hours of Work. These are as stated in the employment contract and so remain unless altered by agreement. Unilateral variation, whether or not involving pay reductions, constitutes repudiatory conduct by the employer.

Overtime, paid or unpaid, may be agreed contractually, subject to reasonable limits; but even then employees may be entitled to refuse to work excessive (unpaid) overtime.

(e) Lay-off. Power to lay-off without pay must be expressly provided for in the contract or implied by custom and practice. But if the only alternative is redundancy, employers can seek agreement to fixed lay-offs.

Demotion or loss of status constitutes fundamental breach unless re-grading or disciplinary procedures allow for these. Similarly suspension without pay as a disciplinary measure or to allow investigation or alleged misconduct, needs contractual authority — if not, employers should suspend on full pay.

Employees have no general right to be provided with work but recent cases suggest that employers should not deliberately withhold work, if available — by sub-contracting for instance.

Employees are entitled to resign rather than obey orders involving unlawful acts.

(f) Constructive Dismissal is not necessarily unfair. Recently where a minority of workers refused to accept reorganisation necessary to the firm's viability and resigned, their Constructive Dismissal was found fair. But employers wishing to justify their breach of contract must state this on their Notice of Appearance to the tribunal.

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