Comments on: More about constructive dismissal http://www.employmentlawadvocates.com/more-about-constructive-dismissal/ Hamilton House, 1 Temple Avenue, London, EC4Y 0HA. Tel: 020 7489 2165 Tue, 23 Aug 2011 14:55:36 +0000 hourly 1 http://wordpress.org/?v=3.1.3 By: James Medhurst http://www.employmentlawadvocates.com/more-about-constructive-dismissal/#comment-510 James Medhurst Tue, 28 Jul 2009 13:16:47 +0000 http://www.employmentlawadvocates.com/?p=924#comment-510 Peter - I suggest that you read the case of Dutton & Clark v Daly from back in 1985. This suggested that an act outside the reasonable range of responses would be a repudiation in all cases. In the 1980s, everything was up in the air but such a view would now be inconsistent with Malik. It is also clear from Fairbrother and Claridge that an act outside the range is not sufficient on its own. What is necessary for someone to do is to analyse what is meant by trust. What does an employee trust an employer to do or not to do? In my view, it is about fair treatment. If an employer acts fairly to an employee then, objectively, he cannot say that he has lost trust. However, if he treats him unfairly, it will not always be the case that trust of being treated fairly in the future is lost. Our relationships would not last long if a single act of unfairness resulted in trust being destroyed in every case. Peter – I suggest that you read the case of Dutton & Clark v Daly from back in 1985. This suggested that an act outside the reasonable range of responses would be a repudiation in all cases. In the 1980s, everything was up in the air but such a view would now be inconsistent with Malik. It is also clear from Fairbrother and Claridge that an act outside the range is not sufficient on its own.

What is necessary for someone to do is to analyse what is meant by trust. What does an employee trust an employer to do or not to do? In my view, it is about fair treatment. If an employer acts fairly to an employee then, objectively, he cannot say that he has lost trust. However, if he treats him unfairly, it will not always be the case that trust of being treated fairly in the future is lost. Our relationships would not last long if a single act of unfairness resulted in trust being destroyed in every case.

]]> By: PT http://www.employmentlawadvocates.com/more-about-constructive-dismissal/#comment-509 PT Tue, 28 Jul 2009 10:28:22 +0000 http://www.employmentlawadvocates.com/?p=924#comment-509 I am not convinced that the Fairbrother point that you talk about at the end of your post is so controversial: If there is a range of reasonable responses, surely some responses within the range will be more reasonable than others. The point being: if a response falls within the range, it may still be tainted by an acceptable degree of unreasonableness. The moment you accept that there is more than one potential response is the moment you open the door to some unreasonableness. On the wider issue: HHJ Richardson seems to be making the point that: Unreasonable conduct will only breach the implied term if the rest of the Malik test (conduct calculated or likely to seriously damage trust, etc) is satisfied. All that Fairbrother did was apply the reasonable range of responses test to the 'without reasonable and proper cause' part of the Malik test, with good reason (as HHJ Richardson explains in paragraph 43). As you point out, HHJ Richardson himself says that it is difficult to conceive of conduct outside the reasonable range that does not breach the implied term. Isn't that basically the same point that Elias P made in Claridge? I am drifting towards the view that, actually, the first instance tribunal in Niblett got it right, in substance even if not in form, when they baldly stated that all that is needed for a constructive dismissal was conduct outside the reasonable range. I know that they were wrong to cite Fairbrother as authority for that view, but, thinking logically... I challenge anyone to come up with a plausible example of conduct that is outside the reasonable range but not likely to seriously damage trust and confidence. I am not convinced that the Fairbrother point that you talk about at the end of your post is so controversial: If there is a range of reasonable responses, surely some responses within the range will be more reasonable than others. The point being: if a response falls within the range, it may still be tainted by an acceptable degree of unreasonableness. The moment you accept that there is more than one potential response is the moment you open the door to some unreasonableness.

On the wider issue:

HHJ Richardson seems to be making the point that:

Unreasonable conduct will only breach the implied term if the rest of the Malik test (conduct calculated or likely to seriously damage trust, etc) is satisfied.

All that Fairbrother did was apply the reasonable range of responses test to the ‘without reasonable and proper cause’ part of the Malik test, with good reason (as HHJ Richardson explains in paragraph 43).

As you point out, HHJ Richardson himself says that it is difficult to conceive of conduct outside the reasonable range that does not breach the implied term.

Isn’t that basically the same point that Elias P made in Claridge?

I am drifting towards the view that, actually, the first instance tribunal in Niblett got it right, in substance even if not in form, when they baldly stated that all that is needed for a constructive dismissal was conduct outside the reasonable range. I know that they were wrong to cite Fairbrother as authority for that view, but, thinking logically…

I challenge anyone to come up with a plausible example of conduct that is outside the reasonable range but not likely to seriously damage trust and confidence.

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