Constructive Unfair Dismissal in Gibraltar- Continued.
Chris Brunt is a Gibraltar employment lawyer, a barrister and acting solicitor who will consider all employee cases on a “no win no fee” basis. If you are going through a disciplinary process or if you have been dismissed I would be happy to discuss your case with a free half-hour consultation.
This post follows my earlier post on constructive unfair dismissal in Gibraltar.
We have seen that in a claim for constructive unfair dismissal, there is a need for the employee to first demonstrate that they have been constructively dismissed. This, you may remember, occurs when the employer’s conduct towards the employee allows the employee to consider that the employer has breached a fundamental term that goes to the root of the employment contract, such that it allows the employee to resign and claim that they have been constructively dismissed by the employer.
So, as we have seen in a claim for unfair constructive dismissal the employee will first have the burden of proving that the employer has breached an express or implied term of the employment contract. Once an employee has proved that they have been constructively dismissed (to the extent that they were entitled to resign and consider themselves dismissed by their employer due to the employer’s conduct), then the employer will have the burden of showing that the dismissal was for one of the potentially fair reasons for dismissal.
However, It may not be a surprise to learn that a significant number of employers in claims brought against them for constructive dismissal deny that the employer was actually constructively dismissed in the first place. But if the tribunal finds, or as in the English case of Savoia v Chiltern Herb Farms Ltd [1981] IRLR 65, the employer agrees that the employee was constructively dismissed, then the employment tribunal will consider all the facts including events leading up to the dismissal to decide whether the constructive dismissal was fair.
As discussed above, in a constructive dismissal case therefore the normal principles that are contained in Gibraltar’s Employment Act (the “Act”) apply. That is the employer will then need to show that the dismissal was for one of the potentially fair reasons contained in section 65 of the Act, that is,
(a) related to the capability or qualifications of the employee for
performing work of the kind which he was employed by the
employer to do;
(b) related to the conduct of the employee;
(c) was that the employee was redundant;
(d) was that the employee could not continue to work in the position
which he held without contravention (either on his part or on
that of his employer) of a duty or restriction imposed by or under
any enactment.
Or it was for some other substantial reason. [SOSR].
In Berriman v Delabole Slate Limited [1985] ICR 546 the Court of Appeal maintained the approach in Savoia v Chiltern Herb Farms and stated that “even in a case of constructive dismissal section 98(1) of the Employment Rights Act (ERA), [note that this is section 65(1) of the Gibraltar Employment Act] imposes on the employer the burden of showing the reason for the dismissal, notwithstanding that it was the employee, not the employer, who actually decided to terminate the contract of employment. In our judgment, the only way in which the statutory requirements of the ERA can be made to fit in a case of constructive dismissal is to read section 98(1) (remember this is section 65(1) in Gibraltar) as requiring the employer to show the reasons for their conduct which entitled the employee to terminate the contract thereby giving rise to a deemed dismissal by the employer.“
It is submitted therefore that after determining the reason for the dismissal, the tribunal needs to decide whether the constructive dismissal was fair or unfair. The tribunal in effect then applies section 65(6) of the Act and which states.
Section 65(6) “Subject to subsections (4) and (5) the determination of the question
whether the dismissal was fair or unfair, having regard to the reason shown
by the employer, shall depend on whether in the circumstances he acted
reasonably or unreasonably in treating it as a sufficient reason for dismissing
the employee and that question shall be determined in accordance with
equity and the substantial merits of the case.“
In summary, therefore, It is submitted that when a tribunal finds that an employee has been constructively dismissed in order to decide whether or not the constructive dismissal is an unfair dismissal it will look at all the surrounding circumstances of the termination, which goes beyond the employer’s conduct which amounted to the dismissal.
Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in Employment Law.
Are you an employee who has been dismissed? Or are you considering resigning and claiming unfair constructive dismissal? Or perhaps you are an employer who wishes to reduce the risks of an unfair dismissal claim against them? Please contact me at Phillips Barristers and Solicitors at 292 Main Street, Gibraltar. Telephone (+350) 200 73900, or email me at chris.brunt@phillips.gi for an informal discussion to see how I can assist you.
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site. https://www.employmentlawgibraltar.com/
