• MAGRATH LLP HUMAN RESOURCES UPDATE
    CONSTRUCTIVE DISMISSAL NOT NECESSARILY LINKED TO BREACH OF A STATUTORY RIGHT

    A breach of a statutory right is not automatically a breach of contract, so said the Employment Appeal Tribunal last week when it ruled that except in certain limited cases, an employer’s breach of a statutory right does not necessarily give rise to a breach of contract claim giving an employee the right to claim constructive dismissal.

    In the case of the Doherty v British Midland Airways Limited, Mrs Doherty brought two successful claims against British Midland on the basis that she had suffered a detriment as a result of her employer deterring her from taking part in Trade Union activities. She then argued that she had been constructively dismissed by British Midland, by reason of her Trade Union activities. The Employment Tribunal held, however, that she had not proved her case that British Midland had committed a repudiatory breach of contract which entitled her to resign.

    One argument raised by Mrs Doherty was that statutory rights protecting employees involved in Trade Union activities were implied by statute into her employment contract. Therefore, she argued, a breach by British Midland of this statutory right was a breach of contract on which she could found a claim of constructive dismissal.

    In its decision the EAT made it clear that there was no basic principle that all statutory rights form part of an employee’s contract of employment. However, certain statutes do imply terms into contracts of employment, for example the Equal Pay Act 1970 implies an equality clause into every contract of employment. Employers should be aware, however, that it will often be the case that breaches of a statutory right, such as the right not to be discriminated against, may also involve a breach of the implied term of mutual trust and confidence allowing employees to resign and claim constructive unfair dismissal. The EAT’s judgement in this case simply makes it clear that such a finding will not be automatic in every case where a statutory employment right is breached.

    4th April 2005