Wells v Countrywide Estate Agents (t/a Hetheringtons) (Unfair Dismissal: Constructive dismissal)

Where an employee resigns in response to a proposed contractual variation following a successful disciplinary appeal, any assumed constructive dismissal must still be assessed under section 98 of the Employment Rights Act 1996. The tribunal must identify the real reason for dismissal and decide whether it was sufficient and fair.

Where gross misconduct was established after a reasonable investigation and dismissal lay within the range of reasonable responses, that misconduct could supply the reason for an assumed constructive dismissal. The employer was also entitled to dismiss without notice, so the wrongful-dismissal claim failed.

The claimant, a branch manager, was summarily dismissed for gross misconduct concerning failures to comply with money-laundering procedures. The Employment Tribunal found that the allegations had been reasonably investigated, that dismissal was within the range of reasonable responses, and that the claimant had committed the gross misconduct alleged.

On an internal appeal, the employer reinstated him subject to a final written warning, demotion and reduced salary. The claimant declined those terms and resigned, alleging constructive unfair and wrongful dismissal. The Employment Tribunal dismissed both claims, holding that any breach involved in the proposed demotion was not fundamental and that the assumed constructive dismissal was in any event fair. The claimant appealed.

1. Appeal dismissed. The Employment Appeal Tribunal held that the arguments about whether the successful internal appeal extinguished the original dismissal, and whether the proposed demotion was a fundamental contractual breach, were academic on the established findings.

2. Assuming in the claimant’s favour that his resignation on 28 June 2014 amounted to a constructive dismissal, section 98 of the Employment Rights Act 1996 required the tribunal to identify the reason for that dismissal and assess its sufficiency and fairness. The reason was the claimant’s gross misconduct, not the severity of the proposed alternative sanction.

3. The misconduct had been properly investigated. Dismissal for it was within the range of reasonable responses. The proposal to replace dismissal with demotion did not require the earlier misconduct or the fair disciplinary findings to be disregarded. The Employment Judge was therefore correct to hold that any constructive dismissal was fair.

4. The wrongful-dismissal claim also failed. The tribunal had found that the claimant had committed gross misconduct, entitling the employer to dismiss him without notice. Accordingly, even an assumed constructive dismissal did not constitute a contractual breach by the employer.

• Employment Appeal Tribunal: appeal dismissed: [2016] UKEAT 0201_15_1102.
• Employment Tribunal: Employment Judge Bedeau, judgment sent on 26 February 2015, dismissed the claims for unfair dismissal and wrongful dismissal. No citation was stated in the judgment.