Constructive dismissal occurs when an employee, with at least two years’ service, resigns because they believe their employer has breached the employment contract, such as when a change of terms is enforced without consultation.But the breach can occur in a more subtle way such as when an employer breaches an “implied” term. One such an implied term is “trust and confidence” which is a mutual obligation between employer and employee.If an employee believes their employer has breached their trust and confidence they can bring a claim for constructive dismissal.Recent tribunal cases have highlighted examples of employer breaches of trust and confidence. These include:<ul><li>An employer hiring a permanent replacement for an employee off sick receiving treatment for cancer.</li><li>A final straw incident (relatively minor on its own) that triggered an employee resignation after a long series of incidents.</li><li>A nurse resigning after years of bullying by a colleague. The acts of bullying by the colleague included not greeting her in the morning and excluding her from tea rounds. The employer failed to deal with the breakdown in the employees’ relationship as they tolerated the bullying.</li><li>The specific desk an employee was asked to sit at contributed to a finding of constructive dismissal as it was seen as symbolically representing a demotion. The employer also made threats of disciplinary action and failed to communicate around changes to the employee’s role and working conditions.</li></ul><h3 id="d3f4fee9-a67f-4662-afda-71405633130c" data-toc-id="d3f4fee9-a67f-4662-afda-71405633130c">Learning for employers</h3><ul><li>Ensure there are clear lines of communication available to all employees to raise and discuss concerns freely</li><li>Ensure managers are aware of and address workplace issues and friction</li><li>Respond promptly, fairly and effectively when complaints and grievances are raised</li><li>Ensure support is offered to complainants and those affected by difficulties at work</li><li>Ensure policies, procedures and training which relate to culture, behaviours, grievances and discipline are up to date, accessible to all and easy to understand</li></ul>

Constructive dismissal occurs when an employee, with at least two years’ service, resigns because they believe their employer has breached the employment contract.

Did you know employees can claim unfair constructive dismissal if they feel their employer forced them to leave?  

Hopefully most of our clients will know that asking an interviewee “are you pregnant?” or “how old are you?” is opening the door wide to claims of discrimination. But there are other questions that employers may want to ask where the question of legality is less clear cut.A starting point for considering if your intended questions might be discriminatory is to consider if they relate to one of the nine protected characteristics. These are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief and sexual orientation. Questions that probe into these areas, either directly or indirectly, are likely to be discriminatory and should be avoided.Here are some of the questions that you might want to ask a candidate but which could be construed as discriminatory and also the safer alternatives to ask:<ol><li>“What are your childcare arrangements?”Questions on childcare arrangements can lead to discrimination based on sex, pregnancy and maternity.<ul><li>Ask instead – “Are you able to meet the attendance requirements of this position?”</li></ul></li><li>“How many sick days did you take in your last job?”Questions on sickness are indirectly checking on a candidate’s health status and if they are disabled. A high level of sickness absence could be due to a long-term health condition that qualifies as a disability.<ul><li>Ask instead – “Are you able to meet the attendance requirements for this role?”</li></ul></li><li>“What school did you go to?” or “What neighbourhood did you grow up in?”Such questions can be used to infer race, socio-economic background or religion. Asking about a school can inadvertently reveal protected information such as a candidate’s religion or belief.<ul><li>Ask instead - “Can you tell me about your educational background and any qualifications relevant to this role?”</li></ul></li><li>“Are you a member of a trade union?”Asking about trade union membership is a breach of the Trade Union and Labour Relations Act 1992, which makes it illegal to discriminate based on union membership.<ul><li>There is no legal way to ask about union membership during recruitment.</li></ul></li><li>“Do you drink alcohol or take drugs?”Questions that delve into private lifestyle choices can be discriminatory under the protected characteristic of disability. Addiction can be considered a disability.<ul><li>Ask instead – “This role requires strict adherence to our drug and alcohol policy. Are you able to comply with this policy?”</li></ul></li></ol>You can read the full article about illegal job interview questions <a target="_blank" rel="noopener noreferrer nofollow" class="link" href="https://hrnews.co.uk/expert-warns-to-not-ask-these-illegal-job-interview-questions/">here</a>.Source: Gavin Parrot

Asking an interviewee “are you pregnant?” or “how old are you?” is opening the door wide to claims of discrimination. 

Illegal job interview questions and the lawful alternatives

A warehouse worker who was accused of being a fraudster and faking the extent of his back pain was unfairly dismissed by his employer when they decided not to authorise health cover payments after occupational health found he was unfit for work.In the case, Mr Wilson was claiming 70% of his salary under his employer’s insurance policy whilst unfit for work. The employer, Aliaxis, appointed a private investigator to check the extent of Mr Wilson’s back problems. The investigation provided Aliaxis with video clips showing Mr Wilson “moving freely” and tracked him walking at a “brisk pace” of 4mph which they found to be inconsistent with someone with significant injuries.The employer told their insurer to cease health cover payments because of concerns about Mr Wilson’s alleged fraudulent behaviours.During a subsequent capability process an Occupational Health (OH) Assessment was conducted which found Mr Wilson unfit and not capable of returning to work for at least three months. Mr Wilson was subsequently dismissed “because of his ongoing medical condition and inability to fulfil his contract obligations”.<h2 id="684d415a-0960-403f-863e-571ababdf7ef" data-toc-id="684d415a-0960-403f-863e-571ababdf7ef">Tribunal findings</h2>The Tribunal found that:<ul><li>Any reasonable employer, on receiving the OH report, would have contacted their insurer about resuming sickness absence payments.</li><li>Mr Wilson’s dismissal was unfair because Aliaxis “could not” dismiss for capability without first exploring if payments from the insurer should be reinstated.</li><li>Aliaxis should have given the insurer a copy of the OH report and asked them to consider resuming payments to Mr Wilson.</li></ul><h2 id="a8e27b19-c2ff-4f49-9ccf-740e764eaa58" data-toc-id="a8e27b19-c2ff-4f49-9ccf-740e764eaa58">Learning for employers</h2>The key learning points for employers from this case are:<ul><li>Decisions on employee disability and illness must be made based on facts and not “rumours, gossip or assumptions”.</li><li>Do not pre-determine if someone is telling the truth without first obtaining sufficient evidence.</li><li>Seek out professional support such as OH if in doubt about an employee’s health claims.</li><li>Explore all available options before a dismissal.</li><li>Consider if your health insurance scheme (if you have this option) can help an employee to remain in employment.</li></ul>A more detailed article about this case can be found <a target="_blank" rel="noopener noreferrer nofollow" class="link" href="https://www.peoplemanagement.co.uk/article/1929328/warehouse-worker-accused-faking-disability-secretly-filmed-unfairly-dismissed-tribunal-rules">here</a>.

A warehouse worker who was accused of being a fraudster and faking the extent of his back pain was unfairly dismissed by his employer when they decided not to authorise health cover payments.