How far should the employer go to provide alternative employment in case of health problems?

In a judgment delivered on the 1^st July 2020 (case number 83/2019LM), the Court of Appeal considered the requirements of constructive dismissal. An ex-employee claimed that he had been forced to resign from his employment due to health problems which did not allow him to continue his job. Through his trade union, the employee requested the employer to provide him with alternative employment, but the company replied that none was available. After exhausting all his sick leave and a further period of unpaid leave, he decided to terminate his employment. The Tribunal had decided that the employee had not resigned under protest which was a requisite for constructive dismissal, but had mentioned medical reasons for his resignation. Moreover, the Tribunal found that whilst the company could have done more to assist the employee in finding alternative employment, its actions could not be equated to constructive dismissal.

The employee appealed from this decision claiming that for a finding of a constructive dismissal there was no need for a resignation to be under protest. The Court of Appeal however held that the Tribunal had considered all circumstances of the case to arrive at its conclusion and had not relied simply on this fact. The Court commented that whilst resignation under protest is one of the elements which constitute constructive dismissal, there is no need for the person who is resigning to specify that the resignation is under protest but it is enough that the employee indicates that there are shortcomings for which the employer is responsible which leave the employee with no other option other than to resign. The Court also considered that the employee had not been proactive in trying to find alternative employment with the company, for example by submitting his application when vacancies were available. It was up to the employee to do all that was possible to identify the alternative work which could have been performed by him and to apply for any vacancies available. The company had no duty to create any new vacancies for him. The court therefore confirmed the finding of the Industrial Tribunal that this was not a case of constructive dismissal.