Can A Redundancy Be A Constructive Dismissal?

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Redundancy & Constructive Dismissal

When an employee feels that the redundancy process followed by their employer was not fair, taking into account all of the circumstances, the employee will be entitled to resign and claim unfair dismissal.

But what about when an employer make a 'unreasonable' change to the employees job role? Case law has demonstrated that the employee will, in certain circumstances, be entitled to resign and claim constructive dismissal, and assert that the reason for their resignation was redundancy.

Can A Redundancy Be A Constructive Dismissal?

Land Securities Trillium Limited v Thornley

Ms Thornley was a senior project leader and architect at the BBC. Following a TUPE transfer to Land Securities Trillium Limited, she was given a new job title and specification, which reduced the need for her to use her architectural skills, and increased the managerial aspect of her role. Ms Thornley felt if she were not actively using these skills, she would lose them and struggle to find another job forthwith, and so she resigned.

The tribunal found that there had been a significant change to Ms Thornley’s duties, which did, in fact, strip her of architectural skills. The Tribunal described this as ‘impeachable’.

Changing an employee’s job duties was something that required consideration as to how reasonable the decision was. The Tribunal was of the view that by making such fundamental changes to Ms Thornley’s job duties, they had effectively made her previous role redundant.

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Redundancy Checklist and Procedure Guide

reiterated in McLoughlin v London Linen Supply Ltd

In this case, the sale of the business led to a reassignment in Mr McLoughlin’s duties, as such he considered that his role had become redundant. He resigned, claiming constructive dismissal. He argued that he resigned due London Linen breaching the implied contractual term of mutual trust and confidence.

While the tribunal did not definitively decide if such a fundamental breach had occurred, they decided that even if there had been a breach, Mr McLoughlin had not resigned in response to it.

On appeal, the Employment Appeals Tribunal considered whether the removal of Mr McLoughlin’s role and London Linen’s failure to adequately communicate this removal to him amount to a breach of the term of mutual trust and confidence. The main issue they considered was whether London Linen’s conduct was likely to damage the term of mutual trust and confidence and whether this breach played a part in the Claimant's decision to resign. As such, Mr McLoughlin’s appeal was allowed.

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Employment Law & HR Manual

What Employers Need To Consider

These two cases clearly show that where an employee’s job duties are significantly altered for whatever reason, and the employee feels that their role is essentially redundant, an employee will be entitled to resign and claim constructive unfair dismissal.

If an employer needs to change an employee’s job duties, they must communicate the proposed changes to the employee and obtain their consent to avoid an employee bringing a claim.

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About the author

James Rowland

Account Services

James is on the Business Development & Account Management team at Neathouse Partners and regularly posts articles surrounding issues in HR & Employment Law, including case law & legislation updates. If you have a particular issue you would like addressed, feel free to drop James an email, and he will be happy to offer his assistance.

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