As I have pointed out over many years. pursuing a claim for constructive unfair dismissal can be a risky course of action because, for the former employee, it brings with it the added burden of having to demonstrate that the employer’s conduct was so unsatisfactory that it established a fundamental breach of a term of the contract of employment, sufficient for the employee to be entitled to treat the breach as operating to terminate the contract. If there is no fundamental breach then there has been no dismissal, hence, there can be no unfair dismissal.
In the case of Williams v Meddygfa Rhydbach Surgery and Doctors Morris, Haque and Smits, Mrs Williams was the practice manager of a rural surgery operated in partnership by the named doctors. She had commenced work in September 1986 as a receptionist and in 1996 was promoted to practice manager at the Botwnog Pwllheli Surgery. According to the judgment, from 2014 the practice found itself in “challenging circumstances”, both financially and in terms of “difficult interpersonal relationships” between admin and clerical staff on one side and the partners on the other. Numerous complaints were raised and ten members of staff identified Dr Smits’ manner as causing distress. He was described as being “direct, brusque and blunt in his manner”. he was also described as “aggressive” and “irascible”. Employment Judge Ryan found that his management style was “at least robust and was often overbearing and, to the Claimant at least, intimidating”. Accordingly, he found that Mrs Williams’ perception that Dr Smits bullied, harassed and intimidated her was “genuine and reasonable”.
The partners had a generally low opinion of Mrs Wiliams. They thought that she was perhaps promoted beyond her ability and that she was in effect working “at the level of a glorified receptionist”. She was not pro-active or enthusiastic as a manager and she had caused concern when she overpaid a caretaker £12,000.
In June 2014 she was called into a meeting during which her performance was criticised. She was surprised and upset and was told that she was to be subjected to performance management. However, she was not offered training or professional management guidance. She was not set targets or issued with any explicit warnings.
In late 2014 Mrs Williams asked whether she could be made redundant. Her request was refused because the partners were concerned that they might not be able to find a replacement.
A practice manager, Deborah Kalaji, was brought in to conduct a “root and branch review of the practice concentrating on managerial improvement”. By this stage Dr Smits acknowledged that Mrs Williams might claim constructive dismissal.There was a difficult meeting on 14 July 2015 during which Dr Smits was highly critical of Mrs Williams. He raised his voiced, gesticulated and waved papers in the direction of Mrs Williams and banged his hand against the door in anger and frustration. Questions were raised about travel expenses paid by her and there was an implied suggestion that she had acted dishonestly . She went off sick and on her return Dr Smits was again rude and unfriendly towards her.
Judge Ryan found that the other doctors closed ranks to support Dr Smits.
In August 2015 Mrs Williams submitted a complaint of bullying, without providing details. She returned to work in September and there were two more difficult meetings. She submitted a formal written grievance in November. The practice appointed external consultants, Gillian Williams and Sarah Goodwin, to deal with the grievance. In a manner typical of the type of statements that he tends to make from time to time (see for example the character assessments proffered at various points in this judgment), Judge Ryan found them to be “sincere, honest and conscientious witnesses notwithstanding oversights, errors and unconscious bias reflected in their handling of matters”. The upshot of the process was that the grievance was dismissed. An appeal was lodged and it then emerged that Mrs Williams asked a work colleague to access the partners’ emails and forward them to her. In a fairly remarkable passage, Judge Ryan observes:
Only Dr Smits appeared to take this matter at all seriously as a potential act of gross misconduct and he was far from impartial and objective in his judgment of it; I find he was would [sic] like to have used it opportunistically against the Claimant if she did not resign when she did.
As indicated in the quote from Judge Ryan, Mrs Williams tendered her resignation by email on 29 April 2016. She asserted that trust and confidence had “completely broken down” and that the appeal outcome was “the final straw” (phrases very familiar to all employment lawyers).
Having considered the law, Judge Ryan concluded that the Respondents did breach the implied term of trust and confidence by bullying and harassment, inappropriate handling of performance management, failure to deal with the grievance in a reasonable manner and the grievance appeal outcome was “the final straw”. Mrs Williams resigned in response to the fundamental breach and she did not wait for “too long” before doing so. However, because she resigned at a time of her choosing, albeit as a result of a constructive dismissal, there was no breach of the notice provisions in the contract and therefore no breach of contract in this regard. I am bound to observe that Judge Ryan’s assertion that a constructive dismissal event can at the same time be treated as a time of the Claimant’s choosing is dubious in the extreme. Nonetheless, this is an example of a successful constructive claim and it is easy to see that where a dysfunctional employment relationship is allowed to fester over an extended period and in the face of obvious wrongdoing (on the part of Dr Smits), such claims, once the fact of dismissal is established can be very hard to defend, as well as having the capacity to cause significant embarrassment to the employer.