When does a constructive dismissal claim fail?

The Claimant was employed as a postal worker in a supervisory position for Royal Mail.  The employer operated a non-contractual career break policy, Royal Mail had a career break policy that guaranteed the right to return to work following a career break to an employee’s former function or business unit only and not necessarily to the same job. 

The employee agreed a career break with his manager.  Whilst written correspondence made clear in line with the career break policy that he had no right to return to his original job on his return, the Claimant’s line manager told the Claimant that he could return to his original role.  The line manager subsequently reneged on that agreement after taking advice on the terms of the career break policy because by the time of the Claimant’s return to work, the employer wanted to keep someone else in the Claimant’s role.  The Claimant raised a grievance on the basis that he had been unfairly displaced from his original role and that this was a form of bullying by management.  His grievance that he had been unfairly displaced from his role was upheld, but the bullying complaint was rejected.  Following the grievance, the employer agreed the Claimant could return to his original role. 

Part of the claimant’s duties in his supervisory position was to ensure that any staff absences were covered by others working overtime.   Occasionally the claimant would be required personally to cover a collection duty.

Due to the Royal Mail’s statutory duties to provide a minimum number of mail collections and deliveries, it was a condition of the staff’s contracts of employment that they work overtime and agree to work at varying times on weekdays, Sundays and Bank and Public Holidays as the needs of the service demand.” The employee’s contract also stated that employees are obliged “to follow any reasonable instructions of their manager” and that a failure to do so may be regarded as gross misconduct on the grounds of insubordination.   

On one occasion, after his return from the career break, the Claimant was asked to cover a collection during a colleague’s absence from work. The Claimant refused to do cover the collection on the basis that he had a bad back and the task may aggravate his condition, albeit he had not previously informed his employer about the condition.   The employer treated the refusal as a potential gross misconduct matter on the basis of it being a refusal to follow a reasonable management instruction.  However, the Claimant considered that his employer had set a precedent when excusing the absent collection driver from covering a collection shift due to that driver’s health concerns without taking disciplinary action. The Claimant believed the fact his employer had chosen to take disciplinary action against him showed he was being treated less favourably.  However, the employer did not believe that the health concerns were genuine as it was not supported by medical evidence from his GP. The Claimant said he would obtain a diagnosis from his GP to support his refusal, but did not do so.  The employer imposed a suspended dismissal in accordance with their disciplinary policy, with dismissal as an outcome in the event of any further misconduct.  The Claimant appealed the suspended dismissal, but the appeal was rejected.   

The Claimant then went on sick leave with work related stress and anxiety.  He explained to his employer that the underlying reason for his sickness was the conduct penalty, which he believed was unfair.  The employee made it clear that unless and until he received an apology in respect of the misconduct case he would remain off work. 

The contractual sick pay policy stated that in order to pay company sick pay, the business must be satisfied that an employee’s absence is necessary and due to genuine illness.  The employer ultimately decided that this was not a reason which made the claimant’s sickness absence necessary and decided not to pay company sick pay on this basis.  The Claimant thought that in deciding not to offer contractual sick pay, his employer was effectively overruling his doctor’s opinion by refusing to accept qualified medical advice in the form of doctors’ certificates.

The Claimant did not attend the employer’s welfare meeting.  The Claimant lodged a grievance regarding his employer’s decision not to pay company sick pay during his sickness absence.  The employer concluded, however, that the Claimant was using his sickness absence as a device to reopen his disciplinary conduct case, albeit that he had exhausted his right of appeal.

The Claimant resigned by letter stating that his continued employment was made untenable due to, amongst other matters, his employer’s refusal to pay full sick pay, contrary to the doctors’ certificates received which stated he should refrain from work.  The Claimant claimed he had been constructively dismissed on this basis. 

The Employment Tribunal’s Decision

The Employment Tribunal agreed that, as the Claimant himself maintained, the conduct penalty was the only reason that he was refusing to return to work. The tribunal accepted that the employer was contractually entitled to withdraw the Claimant’s company sick pay on the basis that it had properly concluded that all of its eligibility criteria had not been met. There had been no constructive dismissal in this regard and his continued absence from work was in fact “an attempt to redo the appeal which had been rejected”.  In other words, it was the Claimant’s sense of injustice that was preventing him from returning to work, rather than his sickness per se. 

The Tribunal accepted that the career break issue would have undermined the Claimant’s trust and confidence in his employer because he was misled about the availability of his substantive role.  However, as the Claimant had continued in employment rather than resign in response to this mishandling of his return from his career break, his claim for constructive dismissal failed in this respect. 

Comment

This case demonstrates that where an employer reneges on a promise to an employee without good reason or where an employee is generally misled, this may give grounds for an employee to claim constructive unfair dismissal on the basis of a breakdown in trust and confidence. However, the employee must act quickly and resign in response, or to raise a grievance and make clear they are continuing to work “under protest”, otherwise, ultimately any claim for constructive dismissal will fail. 

Further, it is all too common for an employee to feel aggrieved following an unsuccessful disciplinary appeal or grievance decision and ultimately, this may be followed by a long period of sickness absence from work on the grounds of anxiety/work-related stress.  However, an employer would need to exercise caution in concluding the sickness absence is not genuine and investigate the situation further by requesting further medical evidence. Interestingly, the Tribunal did agree with the employer that, for the purposes of administering full sick pay, where it is proven on the facts that the principal reason for an employee’s absence is not the sickness itself, the employer is entitled to conclude the sickness absence may not be genuine and withhold contractual sick pay on this basis, where the contractual sick pay scheme permits this. The employer would still be obliged to pay statutory sick pay, however, where the sickness absence is properly certified, in the absence of contrary evidence.  The determining factor in this case was that the employee failed to provide further medical evidence when requested by his employer and admitted that the primary reason for his absence was due to a sense of injustice following disciplinary proceedings where the outcome was not in the employee’s favour.