A home-based employee has now been asked by his employer to work from the office instead. However, the employee feels unable to do this. Esther Smith, partner at Thomas Eggar, and Martin Brewer, partner at Mills & Reeve, advise on whether the employee can bring a constructive dismissal claim.
The question:
A friend of mine was employed in a national accounts role which was home-based (in the Midlands) until last October. His employer offered him a new retail management role, which was also home-based, and which he accepted. His employer now wants the role to be office-based (in London). There has been no formal consultation exercise on this move. Due to personal circumstances, my friend cannot move to London – does he have a case for constructive dismissal?
Legal advice:
Esther Smith, partner, Thomas Eggar
I assume from the detail given that your friend has over a year’s service, so can satisfy the first hurdle of bringing a constructive dismissal claim. Technically, in my view, if the employer has a genuine requirement to have this role based in the office rather than remotely, they should be consulting with the employee and either treating this as a redundancy – on the basis that the role based at home is no longer required – or as a change in terms and conditions.
Either way if he does not agree to the change or the offer of a suitable alternative role in London, then the company will have to dismiss him. If it does this, any claim he has would be for actual dismissal rather than constructive dismissal.
If the company simply imposes the new arrangements on him without his agreement, and expects him to attend work in London rather than continue his duties from home, he is probably best advised to stay working at home and force the company to discipline him for his non-compliance with the terms of his contract, whilst continuing to assert that he does not accept the new terms, and again wait to be dismissed.
From your friend’s point of view, a claim of actual unfair dismissal is easier to pursue, as the burden is on the employer to prove that the dismissal was fair, rather than pursue a claim of constructive dismissal where he has the burden of proving that the employer was in fundamental breach of contract and he was entitled to resign.
Of course, on a practical note, a constructive dismissal claim requires him to walk away from his job with no guarantee of future income.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar.
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Martin Brewer, partner and employment law specialist, Mills & Reeve
A constructive dismissal occurs where the employer breaches the employee’s contract in a fundamental way – sometimes this is referred to as a ‘repudiatory’ breach of contract.
In other words, the employer’s behaviour is such that the employee is entitled to believe that the employer no longer considers himself bound by the contract. The contract is effectively destroyed.
If, as a result of that, the employee leaves, and in doing so neither acts too hastily nor delays too long, then this is the basis for a constructive dismissal.
The ‘offer’ of a new role cannot of itself be a breach of contract. In fact, arguably, it has little to do with the existing contract at all. The better view is that it is either an offer of a new contract or an invitation to vary the existing contract.
You say that the employer “now wants the role to be office-based”. Again this, of itself, doesn’t breach the contract. It’s merely the employer expressing an aim.
The breach may occur if the employer tries to impose, against the employee’s wishes, the move to office-based work. At that stage, the picture starts to get a little more complex.
The first point to note is that the contract may contain a mobility clause covering a change of location and the employer is entitled to enforce that (provided, in so doing, the employer doesn’t make it impossible for the employee to comply).
In the absence of a mobility clause, it is arguable that your friend is redundant as the employer no longer requires a home-based retail manger. If that’s correct then one issue would be whether the offer of an office-based role would be an offer of ‘suitable’ alternative employment.
In the end, however, in the absence of any other options, if the employer can show a compelling reason for the change, it is possible for it to fairly dismiss an employee for not accepting the change (it’s not an easy argument but it is possible).
The practical advice is for the employee to discuss this with the employer, explain his difficulty in moving and see what the options are. In the end, an agreed parting of the ways is usually much better than trying to fashion a constructive dismissal claim or even bring a straightforward unfair dismissal claim, neither of which look great on the CV.
Martin Brewer can be contacted at: martin.brewer@mills-reeve.com
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