05-12-2011

Employers beware critical remarks about employees

An employee has won a constructive dismissal claim against her employer after seeing criticism of her leadership skills by her Chief Executive in an internal email sent to her by mistake.

A Chief Executive inadvertently sent an email questioning an employee’s leadership skills to the employee concerned. Despite reassurances from the Chief Executive that she would still be with the company in 12 months’ time the employee decided it meant she was to be dismissed. She resigned and claimed constructive dismissal. There is a constructive dismissal when an employer has done something that is so fundamentally inconsistent with the employer/employee relationship that the employee is entitled to treat him or herself as dismissed.

The Employment Appeal Tribunal agreed that there had been a constructive dismissal. The company had breached the duty of trust and confidence it owed to the employee. This amounted to a ‘repudiatory breach’ – ie from the perspective of a reasonable person in the position of the employee, and looking at all the circumstances, the employee’s view that the employer had shown a clear intention to abandon the employment contract was reasonable – and the employee was therefore entitled to treat her employment as having been terminated by the employer. There had therefore been a constructive dismissal.

Recommendation

Supervisors, managers and directors should think extremely carefully before putting critical remarks about employees in writing as, if an employee sees their comments, there is a serious risk of a constructive dismissal claim.