Connecting to LinkedIn...



Defending Constructive Dismissal Cases – There Must be a Fair Reason for Dismissal

The Employment Appeal Tribunal (“EAT”) have affirmed in Upton-Hansen Architects ("UHA") v Gyftaki, that an employer must assert and prove a potentially fair reason for dismissal, to successfully defend a constructive dismissal case.

The claimant, Ms Gyftaki (who had worked for UHA for four years) had ran out of annual leave. However, for personal reasons she had to travel to Greece and sought additional leave. In seeking approval for this leave there was genuine confusion between the parties as to whether Ms Gytaki had been granted additional leave or not.

It was not until 8:30pm the night before Ms Gytaki was due to travel, that she was informed that her request for annual leave had been refused. Despite this late notice, Ms Gytaki decided to travel anyway, as she could not postpone and asked for this absence to be accounted for as unpaid leave.

On her return UHA suspended Ms Gytaki. In response to this, Ms Gytaki resigned and brought a claim for unfair dismissal, to which UHA replied and denied constructive dismissal, stating "Save as expressly admitted, all the Claimant's claims are denied in their entirety".

The employment tribunal found that the decision to suspend Ms Gytaki breached the implied duty of trust and confidence, and that she had been constructively unfairly dismissed and wrongfully dismissed. It made awards for wrongful dismissal and basic and compensatory awards. UHA appealed against the employment tribunal’s decision.

The EAT held that the employment tribunal had been entitled to find that there was no fair reason for dismissal, in view of the fact that UHA had not pleaded any such reason. The EAT dismissed UHA’s argument that the tribunal had gone wrong by deciding there was no potentially fair reason.

Instead, the EAT found that the onus is on an employer to prove that there was a fair reason for the dismissal and Judge Auerbach went on to state "A generic denial...does not serve to positively identify what, if anything, the employer's case will be on that aspect, in the event that constructive dismissal is found”.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.