We all know that constructive dismissal cases are rarely clear-cut affairs. Yet a recent case appears to widen the circumstances in which employees are entitled to treat themselves as having been unfairly dismissed in reaction to their employer's behaviour.
The legal starting point
An employee will face a stiff challenge in order to bring a successful constructive dismissal claim. The employee will not simply be able to say they felt they had no choice but to leave. Equally, it will not be enough to demonstrate that their employer has behaved unreasonably.
Amongst the many legal obstacles, the most significant challenge is the employee's obligation to prove that the employer has committed a serious breach of the contract of employment – technically known as a 'repudiatory' breach. Only the most fundamental breaches of the contract will be enough to allow the employee to resign and bring a claim. The employee has to demonstrate that by its behaviour, the employer has effectively terminated the contract of employment.
'You've gone too far this time'
So in what circumstances have Tribunals sympathised with arguments that an employee was justified in resigning? Some past examples have included an enforced pay reduction, a change in the employee's working hours, or failures to follow a set disciplinary procedure. Another constructive dismissal case succeeded when an employer suspended an employee without the contractual right to do so.
Historically, for claims of this type to succeed, the employer's conduct must be of a serious nature. But what about circumstances where an employer attempts to change the nature of an employee's duties without their agreement? How fundamental do those changes have to be before a constructive dismissal case will succeed? This was one of the questions that arose in the case of Land Securities Trillium Ltd v J Thornley.
The Thornley case
Ms Thornley was an architect whose specialism was designing and constructing broadcast studios. Her employment transferred to the Company by virtue of a TUPE transfer. After the transfer, the Company attempted to change the duties that were required of her.
Ms Thornley was concerned that as a result of the changes, instead of being a project co-ordinator she would be a project manager of external consultants. In future, there would be little hands-on design work. She argued that rapidly evolving technology, design and materials mean that an architect's specialist knowledge can soon become obsolete.
Her new role would result in Ms Thornley being denied the chance to practise all the skills that were integral to her professional role. Her worry was that over time these alterations would effectively lead to her being de-skilled as an architect. She eventually resigned in protest at her treatment.
The Employment Appeal Tribunal (EAT) agreed that she had been constructively and unfairly dismissed. The EAT found that the emphasis of her job had changed from being a 'hands-on' architectural role to a managerial one.
Where does this leave us?
In seeking to modify employees' roles, particularly those of skilled professionals, employers should be mindful that even subtle shifts in emphasis might undermine those skills which are an integral part of their profession. In future, the employer who attempts to force specialist financial staff or an in-house accountant into a more managerial role may want to think twice before doing so.
The case also sounds a cautionary note regarding the use of flexibility clauses. The EAT found that the flexibility clause in Ms Thornley's contract did not entitle the Company to change the content of her work so that its nature would be changed entirely. A cavalier use of a flexibility clause may in itself amount to a fundamental breach of contract.
Whilst the Thornley case doesn't mean that bringing a constructive dismissal case is any less daunting, it may have the effect of opening the door to more claims being brought, particularly where skilled professionals are concerned.