Thanet District Council v Webster (EAT, case no 1090/01, unreported)

One of the ways a dismissal can occur, for the purposes of the unfair dismissal provisions, is by an employee terminating their employment contract in circumstances in which they are entitled to do so as a result of an employer's conduct. To rely on a constructive dismissal claim, an employee must show that the employer was guilty of a fundamental breach of the contract. Further, such a breach must be one that goes to the root of the contract and shows that the employer no longer intends to be bound by one or more of its essential terms.

In this case, an employee had been absent from work for 12 months with work-related stress and was refused alternative work in a different department by his employer. The applicant resigned and claimed constructive dismissal on the basis that the employer had failed in its implied contractual duty to provide him with a safe place of work.

The employer's occupational health officer found that the applicant's stress was related to his circumstances at work rather than to a specific medical condition. The officer expressed the view that the applicant would not be able to return to his current job but his problems might be resolved if the employer found him alternative work in a different department. However, the employer informed the applicant that they would attempt to find him an appropriate post in the department he was already employed in. The applicant had made it clear that he did not wish to continue working in the same department. He therefore resigned and claimed he had been constructively dismissed and that his dismissal had been unfair.

The tribunal found that there had been an implied term in the applicant's contract that the council would safeguard his health and safety at work. Further, the tribunal found that the council, by insisting that the applicant transfer to a different post within the same department, had acted in breach of that term and therefore the applicant had been constructively dismissed.

Contrary to guidelines

The EAT concluded that the failure by the employer to conduct a full investigation before taking action in respect of the applicant's ill health was contrary to the guidance laid down in the EAT case of East Lindsey District Council v Daubney [1977] IRLR 181. The EAT stated such an investigation would have led to the council establishing the exact position and enabled it to examine other alternatives as to his return to work. 
The EAT stated that the employer had refused to offer an alternative job to an employee suffering work related stress and had breached its implied contractual duty to provide the employee with a safe place of work. Further, the tribunal had also been entitled to find that the employee, who had resigned following the employer's breach of contract, had been unfairly and constructively dismissed.

Safe place of work

The case also shows that an employer might be obliged to make similar adjustments as under the Disability Discrimination Act 1995, for an employee who could be suffering from stress, which is not a clinically well recognised mental condition for the purposes of the Disability Discrimination Act. If the employer refuses to make an adjustment, it may be in breach of the implied term to provide a safe place of work, or indeed the implied term of mutual trust and confidence and therefore the employer is liable for unfair constructive dismissal claims.

Further, it is likely that an employee will only be entitled to resign and claim constructive dismissal where the employer's decision not to offer an alternative position or its offer of an unsuitable alternative position is final. Therefore, where unsuitable alternative positions are being offered during the course of negotiations the employee should continue to negotiate with the employer.