【正确答案】Constructive dismissal Normally, employees who resign deprive themselves of the right to make a claim for redundancy or other payments. However, s.136 Employment Rights Act 1996 (ERA) covers situations where ‘the employee terminates the contract under which he is employed (with, or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct’. This provision relates to what is known as ‘constructive dismissal’ which covers the situation where an employer has made the situation of the employee such that the employee has no other reasonable action open to them but to resign. In other words, the unreasonable actions of the employer force the employee to resign. In such a situation the employee is entitled to make a claim for unfair dismissal, no matter the fact that they actually resigned. In Simmonds v Dowty Seals Ltd (1978), Simmonds had been employed to work on the night shift. When his employer attempted to force him to work on the day shift he resigned. It was held that he could treat himself as constructively dismissed because the employer’s conduct had amounted to an attempt to unilaterally change an express term of his contract. An employee may also be able to claim constructive dismissal where the employer is in breach of an implied term in the contract of employment (Gardner Ltd v Beresford (1978)). In Woods v WM Car Services (Peterborough) (1982), it was further held that there is a general implied contractual duty that employers will not, without reasonable or proper cause, conduct themselves in a manner which is likely to destroy the relationship of trust and confidence between employer and employee and that such obligation is independent of, and in addition to, the express terms of the contract. The action of the employer, however, must go to the root of the employment contract if it is to allow the employee to resign. In other words, it must be a breach of some significance. In Western Excavating Ltd v Sharp (1978), Sharp was dismissed for taking time off from work without permission. On appeal to an internal disciplinary hearing, he was reinstated but was suspended for five days without pay. He agreed to accept this decision but asked his employer for an advance on his holiday pay as he was short of money; this was refused. He then asked for a loan of ￡40; that was also refused. Consequently Sharp decided to resign in order to get access to his holiday pay. Sharp instituted a claim for unfair dismissal on the basis that he had been forced to resign because of his employers’ unreasonable conduct. The employment tribunal found in Sharp’s favour on the grounds that his employer’s conduct had been so unreasonable that Sharp could not be expected to continue working there. However, on appeal the Court of Appeal held that before a valid constructive dismissal can take place, the employer’s conduct must amount to a breach of contract, which is such that it entitles the employee to resign. In Sharp’s case there was no such breach and therefore there was no constructive dismissal. However, in British Aircraft Corporation v Austin (1978), a failure to investigate a health and safety complaint was held to be conduct amounting to a breach of contract on the part of the employer which was sufficient to entitle the employee to treat the contract as terminated. If the employee does not resign in the event of a breach by the employer, the employee will be deemed to have accepted the breach and waived any rights. However, they do not need to resign immediately and may, legitimately, wait until they have found another job (Cox Toner (International) Ltd v Crook (1981)).

【正确答案】In relation to a successful claim for unfair dismissal, an Employment Tribunal may award any one of the following remedies: (i) reinstatement, (ii) re-engagement, or (iii) compensation. Reinstatement is where the dismissed employee is treated as not having been dismissed in the first place. Re-engagement means that the dismissed employee is re-employed under a new contract of employment. The calculation of a basic award of compensation is calculated in the same way as for redundancy payments and is subject to the same maximum level of payment. The actual figures are calculated on the basis of the person’s age, length of continuous service and weekly rate of pay subject to statutory maxima. Thus employees between the ages of 18 and 21 are entitled to ? week’s pay for each year of service, those between 22 and 40 are entitled to 1 week’s pay for every year of service, and those between 41 and 65 are entitled to 1? weeks’ pay for every year of service. The maximum number of years’ service which can be claimed is 20 and as the maximum level of pay that can be claimed is ￡430, the maximum total that can be claimed is ￡12,900 (i.e. 1·5 x 20 x 430). In addition, however, a compensatory award of up to ￡72,300 may be made at the discretion of the tribunal and an additional award of up to ￡22,360 may be made where the employer ignores an order for re-employment or re-engagement, or the reason for dismissal was unlawful discrimination.