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Application for voluntary severance was incompatible with claim for constructive dismissal

Posted by TonyBrownEmploymentSolicitor on September 2, 2013

In the next case, an employment tribunal ruled that a claimant’s application for voluntary severance was incompatible with her claim that she had been constructively dismissed.

When the Claimant was on stress-related sickness absence, she heard that her employer had invited the workforce to apply for voluntary severance. The Claimant submitted an application and received, and accepted, a severance offer.

She then brought employment tribunal proceedings for constructive dismissal, arguing that the stress caused by her employer amounted to a fundamental breach of her employment contract that left her no option but to leave.

Her claim was dismissed by the tribunal on the grounds that she had not been dismissed, constructively or otherwise, but left by mutual agreement. The tribunal said that, to establish constructive dismissal, the Claimant would need to show that the employer had acted in fundamental breach of her contract and this was the reason for her resignation. This was not the case here. At no stage had the Claimant told her employer that she considered the relationship at an end because of the employer’s conduct. She had instead applied for voluntary severance without giving any indication of her grievance or of her intentions.

The EAT dismissed the Claimant’s appeal. It was accepted that the employer had acted in such a way that would have entitled the Claimant to resign and claim constructive dismissal. The Claimant could have done so but did not do so. Instead she affirmed the contract between herself and her employer by applying to take a voluntary severance package. In these circumstances, the basis on which her employment ended was her pursuit of voluntary severance.

Comment

To succeed with constructive dismissal, a claimant needs to show that the employer was in fundamental breach of her contract and that this was the reason for her resignation. This was plainly not the case here. Instead of telling the employer that she regarded her employment as at an end because of the employer’s conduct that had resulted in her sickness absence, the Claimant applied for voluntary severance.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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