Jersey: Constructive Unfair Dismissal Claim And Its Link With Personal Injury Claims

Last Updated: 6 August 2012
Article by Colette Hunt

The employment claim of a Ms B v States Employment Board (Jan 2012) only came about because of the events that occurred in the months following her sustaining an injury during the course of the employment.

Ms B was an experienced healthcare worker, employed by the States of Jersey, who was involved in working with damaged and vulnerable individuals. Unfortunately, in June 2009, she and another colleague were suddenly subjected to violence by one of the patients in their care. The attack was sufficiently serious to become the subject of a criminal court hearing and also such that Ms B pursued a civil claim for damages for the personal injury she suffered, as was her legal right to do.

As there was a criminal trial, this was not a case where the circumstances of how the injury came to be sustained were in dispute, nor was it in doubt that the attack had resulted in genuine harm to Ms B. Notwithstanding this, the existence of her civil claim was considered by the Tribunal to have been a significant factor in her emotional state in the months after the attack, such that it adversely affected her relationship with her employer. She resigned in April 2011, almost two years after the injury was sustained, because she claimed that she had lost trust and confidence in her employer. She did not work her notice.

Ms B's employment claim was for compensation for unfair dismissal on the premise that following the incident at work, her employer committed a repudiatory breach of her contract of employment.

To succeed with a constructive unfair dismissal claim, the employee must show that the employer breached a fundamental term, which is implied into all contracts of employment, namely that of mutual trust and confidence. The breach of this must be significant enough to be a fundamental breach of the contract. It must go to the root or heart or the contract.

Ms B's claim had four different limbs, that she was inadequately supported by her employer both immediately after the attack and at the time of the criminal trial in October 2009, that the employer had failed to deal properly with the concern that she lodged under its Serious Concerns Policy/grievance policy, and also that her redeployment had not been in an appropriate manner.

The Tribunal apply an objective test in such a case and, after considering all the circumstances and events, have to decide whether the employer's conduct was such that an employee could not be expected to tolerate it and resign. The employee must act promptly otherwise their continuing to work is likely to be deemed to amount an affirmation of the contract and forgiveness of the breach.

There is accepted case law that an employer's course of conduct over time can amount to a fundamental breach of the implied term following a "last straw" incident, even if the latter would not alone have amounted to a breach. However, the last incident, must contribute in some way, albeit slightly, to the breach.

In Ms B's case, the Tribunal concluded that neither individually or cumulatively did the events that she relied upon amount to a fundamental breach of her contract of employment on the part of her employer. Thus, her claim for constructive unfair dismissal failed.

In her case, the Tribunal considered her occupational health records, in particular medical reports produced by specialist health professionals within her employer's occupational health advisory agency. From reading these, it considered that the most likely reason that Ms B lost the requisite trust and confidence was because she attributed her disenchantment with her employer to her symptoms and the civil case that she was bringing against them. The Tribunal referred to an opinion in one of the medical reports which suggested that the strained employment relationship was not the result of what her employer did or did not do to her, but rather resulted from the corrosive effect of both her emotional stress and her on-going litigation. It is fairly common for litigation to be stated within medical reports as being a reason, or the main reason, for the employee's stress.

It seems that employees often view or perceive events and things that are said at work quite differently after an accident has occurred and if a claim is being pursued.

Although the initial letter of claim in a personal injury claim is addressed to the employer, once it has forwarded this onto its Insurers and provided any information that they request (this may include information about wages details and the taking of some witness statements of fellow employees), an employer usually has no further, or little, input in the day to day running of the claim thereafter (assuming that the value of the claim is not less than the excess of the employer in which case the employer would run it themselves or instruct their own lawyers to assist them). Thus there is plenty of scope for misunderstanding in the relationship, and an employee's beliefs about what the employer knows about the developments in the claim are possibly often mistaken.

It is the Insurers who then run the case to conclusion and, only if Court proceedings have to be served, may the employer have some further involvement as it is them who are named as the Defendant in the action.

Assuming that the accident circumstances were covered by the terms of the insurance policy wording, any damages or compensation for the civil claim that the employee is entitled to are paid by the Insurers, and not the employer. Notwithstanding this, the employee often associates the stance taken by the Insurers and points made by them in correspondence with their employer. Particularly if liability for the accident is denied by the Insurers (or their appointed loss adjusters), the employee may well believe (wrongly) that their employer is behind this or has had some input in it. In reality, the employer is frequently not kept informed of the stage that has been reached in the claims process and only becomes aware of it again if proceedings are served or if there is a date set for a contested court hearing.

During my experience of dealing with personal injury cases I have seen instances where the employment of longstanding and valued employees has come to an end primarily because of things said, or not said, at work, in the months since the injury, rather than because of any physical inability of the employee to do their former job.

However, it has often struck me that the employment relationship need not have become so damaged. If the employer had better managed the events which occurred after the accident and if the communications with the employee during the immediate recovery period and beyond had been handled differently, then the employee may not have resigned or the employer dismissed them.

Where the circumstances of how the injury was sustained are disputed or there are any doubts, either of the extent of the original injury suffered or the ongoing symptoms, in correspondence from the Insurers of the employer, this becomes a real cause of stress for the employee, and invariably the relationship with the employer shows signs of strain. As such claims take time (often several years), to reach a stage where they are capable of concluding (whether by settlement negotiations, mediation or Court trial), over this period, much damage can be done to what was a good working relationship.

However, an employer who is prepared to give the time to ensure that an injured employee does not feel or become distanced or disenchanted after an accident at work may not only save the loss to the business or organisation of an experienced and valued employee but also avoid the cost (in terms of time, resources and possible legal fees) of defending a constructive unfair dismissal claim.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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