It is part of basic contract law that where an employer's conduct amounts to a repudiatory breach of contract, an employee who resigns as a result can claim that he or she has been constructively dismissed.

However, there are some issues which still cause difficulty relating to the question of constructive

dismissal. This includes whether the employee, when he announced his resignation, made it clear to the employer that he was resigning as a result of the employer's behaviour.

This issue was the subject of a recent case. Here the employee worked as a foreman in the parks and gardens of a London borough. He was paid an extra £26 per week to reflect his status as chargehand.

In 1995 the contract for his running of the park was transferred to a new employer. After about two weeks his new employer told him that he would now not receive any extra payments and that a younger man would be given the job of chargehand.

His employers also made several complaints about his work which he had been doing for the past 17 years.

The employee handed in his resignation. His new employer was surprised by this decision and asked him for his reasons. He told them that he was fed up and that he was taking early retirement.

He said that he also intended spending some time renovating his house. But later he brought a case of constructive dismissal against his employer.

The Tribunal identified three fundamental breaches of contract on the part of the employer. These were the failure to give the employee the position to which he was entitled, the refusal of the payment of extra monies and the breakdown of trust and confidence caused by the criticism of his performance.

The Tribunal found that the employee had in fact resigned in response to his employer's conduct but he had given a different reason out of pride, ie, he did not wish to say he had been forced out of his job.

However, in this case it was stated that the employee must make it clear to his employer that he or she is leaving for a reason that is consistent with there being a constructive dismissal situation.

In these circumstances the employee had failed to do this and therefore the Tribunal dismissed his claim.

The employee appealed but on appeal it was agreed that it would be unjust for an employer to face an allegation of constructive dismissal when the employee had parted on apparently amicable terms. Therefore, the employee was not entitled to succeed in his claim for constructive dismissal.

There has been much comment about this case stating that this judgement is too harsh, but the employee's communication to the employer is an important one.

Therefore, if any employee does wish to leave for reasons of constructive dismissal he must make clear to his employer if he wishes to succeed in a Tribunal.

Julia Lister is head of Gordons Wright & Wright's Keighley office

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