This week Nicholas Snowden, senior solicitor at Clarkslegal LLP and Stephanie Wootton, employment law expert at Browne Jacobson present their ideas on the law governing constructive dismissal.

The question:
“Due to a promotion opportunity, an employee is refusing to work with a fellow co-worker. The co-worker in question recently had an adulterous relationship with this employee’s husband which led to the employee’s marriage break up and divorce. Relations between the two are very acrimonious. Until now their work duties did not bring them into close contact and this was acceptable to the employee. This has now changed as promotion will necessitate close co-operation between them.

“The employee is adamant that she does not want to work alongside the co-worker and that if we try and force her to do so, she will have no option but to resign due to constructive dismissal. Her argument is why should she give up the promotion opportunity when she has done nothing wrong. Would we be within out rights to either turn down the promotion or redeployee either of the two to other duties against their wishes?”

Andrew Monroe

The answers:
Nicholas Snowden, Senior Solicitor at Clarkslegal LLP

This is a fascinating set of circumstances. There is no easy answer, but I would recommend the following:

• If your organisation is big enough, try to find an alternative equivalent role for one of the two employees, with their consent.




• If there are no such roles, organise separate meetings with the employees to find out if they have any suggestions which could resolve the issue.




• If no solution can be found, I would recommend leaving it up to the employee to decide whether or not to accept the promotion.

If the redeployment/consultation works, any further problems should be avoided. If they do not, you have to take a hard decision, whichever way you go. However, I think that a Tribunal would consider that, by your efforts, you had done what you could to resolve the problem. The fact that you made those efforts and that the employee had the choice of refusing the promotion, would stand you in good stead in defending any claim of constructive unfair dismissal.

Morality apart, there is no wrong-doer here, as there might be in a classic disciplinary situation where two people had clashed. This makes the alternative of moving one of the employees without their consent, seem highly unsatisfactory. In any event, it may not be possible, if you have no suitable alternatives available.

On a practical level, good communication will be key in this situation. It will also be important to record your own detailed reasoning for the decisions you have taken, so that you can show a Tribunal that you applied your mind to the issues thrown up by the situation.

Nicholas Snowden can be contacted at nsnowden@clarkslegal.com

Stephanie Wootton, employment law expert, Browne Jacobson.

In terms of UK law, to claim constructive dismissal, an employee must demonstrate that the employer committed a fundamental breach of contract, which entitled him or her to resign.

The eligibility requirements for constructive dismissal are the same as for normal unfair dismissal, and as such apply after one year’s service.

In the case of your aggrieved employee, before she can claim constructive dismissal, she must have complied with Statutory Dispute Resolution Regulations, which oblige her to set out the nature of her grievance in writing. You must then to invite her to a formal meeting to discuss the grievance, notify her of the outcome and offer the right to appeal.

If you turn down the promotion, or redeploy either employee against their wishes, you could face a breach of contract or constructive dismissal claim. You need to explore with both individuals whether redeployment is feasible. Unless you ask, you’ll never know if the aggrieved employee or her co-worker might agree to work in a different department, or can suggest any other acceptable solution, in which case, the matter might be resolved.

You should keep notes of all meetings, and ask the individual(s) to sign and confirm any agreed changes to contractual duties. Wherever possible, it is better that the employee agrees to whatever action is to be taken following detailed consultation meetings.

If neither employee will agree to a change, you might have to impose a solution, as you suggest. This is not without risk. Two of the most obvious solutions might be to:

• Redeploy one or the other – running the risk of constructive dismissal.




• Dismiss one or the other – running the risk of an unfair dismissal claim.

Whatever solution you impose, should it come to that, make sure you follow the appropriate procedure, i.e. deal with any grievance at a properly convened meeting (allowing representation and an appeal); and hold a properly convened dismissal meeting (again, allowing representation and an appeal).

Stephanie can be contacted at: swootton@brownejacobson.com

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HRZone highly recommends that any answers are taken as a starting point for guidance only.

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