Free Employment Advice - Constructive dismissal: Implied Term to take Reasonable Care for Health and Safety of Employees

O was employed by M as finance director. She regularly worked very long hours. In June 2000 she emailed the managing director of M, requesting a reorganisation of the company’s financial affairs and stating that she could not do her job properly unless changes were made. The managing director responded positively but O concluded that nothing was going to be done. She resigned, stating that her position had become untenable because of her workload. In August 2000 she suffered a nervous breakdown.

O’s doctor had told her earlier in 2000 that she should seriously consider giving up her job for the sake of her health. M was not aware of this issue. The only indications of O’s health which were available to M were a discussion with a colleague in which she had said that she could not cope, and the fact that a colleague had seen her in tears on a few occasions.

O complained of unfair constructive dismissal to an employment tribunal. Her complaint was based on a breach of the implied term of trust and confidence through burdening her with overwork. The tribunal upheld the complaint. M appealed to the Employment Appeal Tribunal (EAT) which decided the following:

• The appeal should be allowed and the matter remitted to a different tribunal.

• When an employment tribunal is considering whether there has been a breach by an employer of the implied term to take reasonable care for the health and safety of employees, sufficient to form the basis of a claim for unfair constructive dismissal, it must consider precisely what the employer did wrong.

• In “stress” cases, employment tribunals must ensure that there decisions are compliant with the principles stated by the Court of Appeal in Sutherland v Hatton.

• In the case of O, the employment tribunal had failed to consider the following;

1. Whether the indications were plain enough for a responsible employer to realise that it needed to do something about the risks to the employee’s health.

2. What the employer should have done, given that it was reasonable for an employer only to take steps which are likely to do some good.

3. Whether the breach of the implied term had in fact caused the harm suffered.