One of the side products of this week’s decision by a group of Tory and Labour MPs to quit their parties and sit as an independent group was a somewhat heated discussion on parts of social media as to whether some of them, particularly Liverpool Wavertree MP Luciana Berger, would be able to claim constructive dismissal over their alleged treatment by their party organisations.
The first thing to say is that MPs are not employees of their political parties, so the simple answer is no. But as constructive dismissal is something that worries many small employers, it’s worth clarifying what it is – and isn’t.
Constructive dismissal is behaviour by the employer that is so awful that the employee can consider that they no longer have any trust or confidence in the organisation they work for and resigns as a consequence. It can be thought of in some respects as the opposite of gross misconduct (a situation where an employee commits an act that the employer can no longer have any trust or confidence in them, e.g. stealing, assault, leaking commercial secrets to a competitor etc).
It could be a single act by an employer, such as unilaterally reducing someone’s pay or demoting them to a lower grade. It might be humiliating someone in the presence of their colleagues and subordinates (this Gordon Ramsay clip is a good example – warning contains strong language). It can also be the final straw in a series of events which allows the person to conclude they can no longer work there.
It’s also worth remembering that an employer is responsible for the behaviour of their staff. So, if an organisation ignored or failed to deal with allegations of bullying, harassment, insulting or threatening behaviour against an individual employee by their colleagues, which then led to the individual resigning, they could be deemed to have constructively dismissed the employee.
Constructive dismissal isn’t a situation where an employer makes a decision that the employee is unhappy about (I’ve been asked questions about in the past about whether making someone move from a private to a shared office could be constructive dismissal for example – it wasn’t). And remember that if the person doesn’t resign there can be no constructive dismissal.
Constructive dismissal is also quite rare. There are, I think, two reasons for this. The first is that it takes a lot of courage, even in a very difficult situation, to simply walk out of a job. The second is that to win a case at a tribunal, the onus is on the employee to show that the employer’s actions were such that they were justified in resigning, rather than a normal unfair dismissal where the onus is on the employer to show that its decision was fair and reasonable. Even though the case is – like all employment matters – decided on the balance of probability (what the judge thinks is the most credible explanation of events) rather than the criminal standard of absolute proof, it still puts an additional hurdle in the way of a successful claim.
Based solely on the reports and social media postings I have seen, had she been an employee then Ms Berger certainly would have strong grounds for a claim. Whether she would have succeeded would have been up to a tribunal judge to decide. But it’s a useful reminder to employers that trying to ‘force’ someone (or allowing colleagues to force them) out of an organisation can have far-reaching consequences.