Can an employee claim constructive dismissal on the basis they would rather resign than go through a formal capability procedure?

Can an employee claim constructive dismissal on the basis they would rather resign than go through a formal capability procedure?

Yes, held the employment tribunal on the facts of this case.

The claimant was signed off work with stress for a number of weeks after an incident where he was berated and belittled by his line manager very publicly in front of all of his colleagues and in the middle of the open-plan office.  The claimant raised a grievance against the line manager as a result which was upheld, and the line manager was issued with a final written warning.

Vaughan v Talbot Underwriting Services

In this case, Mr Vaughan was signed off work with stress for a number of weeks after an incident where he was berated and belittled by his line manager very publicly in front of all of his colleagues, in the middle of the open-plan office.  Mr Vaughan raised a grievance against the line manager as a result which was upheld, and the line manager was issued with a final written warning.

When Mr Vaughan returned to work, he noticed that he was being treated “coldly” by senior managers (some of whom would completely ignore him).  A few months later, concerns were raised about his performance at work.  Mr Vaughan did not believe that a fair capability procedure was possible, and offered to resign instead. Talbot, the employer, persuaded Mr Vaughan to stay, but he later resigned when faced with the capability procedure again.

Mr Vaughan brought a claim of constructive unfair dismissal and the tribunal ruled in his favour, noting that there had been no support or steps implemented in ensuring that his wellbeing was taken into account following the incident and period of bullying.

This is an unusual case, as an employer is entitled to place an employee on a formal capability process. However, on the particular facts in this matter – primarily that the employee has been assured that if he didn’t resign, he would be supported with training, but was instead placed on a capability process – the employer’s actions were such to lead to a breach of trust and confidence, entitling Mr Vaughan to resign.