In Upton-Hansen Architects v Gyftaki, the EAT held that if an individual is found to have been constructive dismissed, an employer needs to prove a potentially fair reason for the dismissal to successfully defend the claim. The employer lost the claim at the Tribunal stage and appealed to the EAT on, amongst other points, the Tribunal had not considered whether there was a fair reason to dismiss the Claimant. The EAT, however, dismissed this appeal on the grounds that the employer had not pleaded any such reason. The employer had not asserted that if the dismissal was found to have happened, such dismissal was fair, nor had they attempted to assert what the potentially fair reason would be in that case. The EAT held that a generic denial of any matter 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, thus the appeal was dismissed on this ground.

This case underlines the importance of properly pleading cases and defences. The fact that the burden of proving a potentially fair reason for dismissal is on the employer and confirms that in cases of constructive unfair dismissal, a potentially fair reason for dismissal should be pleaded in the alternative.

Originally published September 4, 2019

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