The facts in David Orbison’s claim for constructive unfair dismissal
David Orbison was employed by the Charity Commission as a senior case worker. In 2010 David Orbison was instructed to investigate African Aids Action (“AAD”) on allegations that the chairman of the AAD was using funds allocated to the charity for his own personal benefit. Whilst drafting his report Mr Orbison was frustrated when the Charity Commission failed, in his opinion, to treat the chair of the AAD severely enough and he therefore made a complaint to his employer under the Public Disclosure Act 1998. His relationship with the management of the Charity Commission continued to deteriorate after this and he was signed off work suffering from stress. He later resigned and subsequently submitted claims for constructive dismissal, “whistleblowing” and disability discrimination.
The law relating to constructive unfair dismissal
If an employee has resigned (or wishes to resign) from their employment because of their employer’s conduct they must clear four “hurdles” to show that they were constructively dismissed. They must demonstrate that:
- There was a fundamental breach of contract by their employer
- This breach of contract was sufficiently serious to justify their resignation
- They resigned because of the breach of contract and not for any other reason; and
- They did not leave it too long between the breach and their resignation (otherwise affirming the variation of the contract)
Should the employee fail to demonstrate all of the above on the balance of probabilities then it is likely that their claim for constructive unfair dismissal will not succeed. Should they succeed in showing the above then the analysis of their claim will move to a consideration of whether the employer’s conduct can be justified in some manner (that the reasonable employer would have treated the employee in such a manner).
The Employment Tribunal’s judgment in Orbison v the Charity Commission
The Employment Tribunal dismissed all of David Orbison’s claim except for his constructive unfair dismissal claim. The Employment Tribunal found that there had been a breakdown of mutual trust and confidence between the two parties and that this breakdown was caused by the actions of the Charity Commission. However, the ET did not believe that his treatment was a result of his whistleblowing but because of a breakdown in the relationship between himself and management prior to and after his protected disclosure. Further, the Employment Tribunal dismissed the claims for direct discrimination and failure to make reasonable adjustments.
Our specialist employment lawyers’ thoughts on David Orbison’s constructive unfair dismissal case
This case shows how tensions can quickly escalate in a workplace environment, leading to stressful situations for both parties and (in some circumstances) necessitating the terminating of the contract of employment. However, such circumstances are avoidable with good workplace management.