Constructive Dismissal - Absence Of Intent but Contract Still Undermined

Parsons v Bristol St Motors - EAT 2008
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The recent EAT (Employment Appeals Tribunal) case of Parsons v Bristol St Motors serves to remind us of the basic ingredients in a case for constructive unfair dismissal.
Mr Lawrence a seemingly coarse and brutish man was a new broom of a manager sent in to increase flagging sales.
A Mr Lovelock and Mr Parsons resigned and claimed constructive dismissal. The tribunal decided in favour of Mr Lovelock but rejected Mr Parson's claim.
The tribunal accepted that Mr Parsons had been subjected to physical and verbal abuse that he complained about, but considering the legal intricacies of his claim then rejected it. The EAT decided that the tribunal was wrong.
The tribunal's reasoning was that the "test of constructive dismissal is objective not subjective and that Mr Parsons' feelings deep and sincere though they were, are not in point," and that "Mr Lawrence's conduct towards Mr Parsons was not in full context calculated or likely to destroy the employment relationship or such as to indicate by course of conduct a wish to bring the employment relationship to an end."
The EAT when considering the judgment of the ET considered the case of Sharp which explains questions of constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996. Malik was considered for formulating the term of mutual trust and confidence implied into a contract of employment. A breach of that implied term is repudiatory and entitles an employee to treat himself as not further bound by it.
The EAT found that the tribunal erred in that it in effect only considered whether Mr Lawrence had intended to undermine the contract. The ET believed he hadn't. The tribunal should have however also considered whether the conduct viewed objectively was likely to have had the effect of undermining the contract. The EAT believed that Mr Lawrence's behaviour was indeed likely to undermine the contract, and did so whether or not he intended this to happen.
The EAT also held that although it is not an overriding factor, the victim's own feelings need to be taken into account when considering whether conduct of the respondent was likely to destroy trust and confidence.
The EAT allowed the appeal with a finding of constructive unfair dismissal. With the finding that Mr Parsons had been unfairly and constructively dismissed the case was returned to a new employment tribunal to decide on compensation.

The transcript of this case can be found Here

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© Workrep 15 / 04 / 2008

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