- An employee's refusal to accept that they have breached their duties is relevant to whether dismissal is within the range of reasonable responses for unfair dismissal purposes. In Reilly v Sandwell Metropolitan Borough Council, the Supreme Court ruled that it was fair for an employer to dismiss a head teacher for failing to disclose her relationship with a person convicted of making indecent images of children, in breach of an implied contractual duty to do so, taking into account that she refused to accept that she should have made the disclosure. Although the point was not argued or ruled on, the Court also raised doubts about the appropriateness of the longstanding reasonable response test for unfair dismissal, providing some encouragement for a potential challenge to this in the future.
- Mirab v Mentor Graphics concerned the application of the range of reasonable responses test to the fairness of a redundancy dismissal, and highlights that in some cases this will require the employer to at least consider 'bumping' (ie dismissing another employee to make their job available to the redundant employee), even if they later reasonably reject the idea. Employers should certainly consider bumping if the employee expressly raises the issue and, if they do not, may still need to do so depending on the facts. Employers should not assume that an employee, who has previously made clear that they would not consider taking a more junior job, will maintain that view once informed that the alternative is redundancy. Best practice is always to consider whether bumping might work in a particular case, to raise it with the employee if so, and to keep a note of your reasons if not.
- An employee's ignorance that their employer's conduct is unlawful will not of itself defeat a constructive dismissal claim. If the employee fails to set out their reasons for resigning, the tribunal may be able to infer that the reason is the employer's conduct where that amounts to an "egregious" breach of contract. In Mruke v Khan the tribunal was entitled to conclude that the payment of wages 'shockingly' below the national minimum wage must have been the reason for the employee's resignation, where the claimant had not given any express reasons.
Key contacts
Steve Bell
Managing Partner - Employment, Industrial Relations and Safety (Australia, Asia), Melbourne
Emma Rohsler
Regional Head of Practice (EMEA) - Employment Pensions and Incentives, Paris
Disclaimer
The articles published on this website, current at the dates of publication set out above, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.