Does an employer need to assert and prove a potentially fair reason for dismissal, to successfully defend a constructive dismissal case?
Yes, held the EAT in Upton-Hansen Architects ("UHA") v Gyftaki.
Ms Gyftaki had run out of annual leave. There was genuine confusion about whether Ms Gytaki had been granted additional leave until late the night before she was due to travel when her leave request was refused. Because of the late notice, she travelled anyway.
The employer suspended her in a way that amounted to a breach of the implied term of trust and confidence. Ms Gyftaki resigned in response and was therefore constructively dismissed. After she brought her claim for unfair dismissal, UHA put in a response denying constructive dismissal, but then only saying:
"Save as expressly admitted, all the Claimant's claims are denied in their entirety"
The burden of proving a potentially fair reason is on an employer. Dismissing a ground of appeal that the tribunal had gone wrong by deciding there was no potentially fair reason, His Honour Judge Auerbach said:
"A generic denial...does not serve to positively identify what, if anything, the employer's case will be on that aspect, in the event that constructive dismissal is found. Further, in the particulars of response in this case, there was a specific section, headed "constructive dismissal"...This plainly [disputed] whether there had been a fundamental breach but it did not assert that, if dismissal was found [any] dismissal was fair, nor what the fair reason for dismissal would in that case be. Nor was there any other section of the pleading dealing with unfair dismissal or the topic of unfairness."
Thanks to Matthew Jackson of 10 KBW for preparing this case summary.