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Constructive dismissal - What's good for the goose, is good for the gander
One of the essential terms of any contract of employment is the implied term that neither party will, without reasonable and proper cause, act in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.
In the recent EAT case of Aberdeen City Council v McNeill the employee in question, resigned before the completion of an investigation into allegations that had been made about his conduct. In short, he complained that the investigatory procedure carried out by his employer was oppressive and that this entitled him to resign and claim constructive dismissal.
The employee however, was a senior manager and it transpired that prior to his resignation he had:
- subjected a subordinate female colleague to verbal sexual harassment over a significant period;
- abused his dominant position in relation to her;
- vandalised a telephone belonging to his employer (by cutting the cable off with a pair of scissors);
- been intoxicated in the workplace;
- lied to his employer;
- disclosed details of his confidential statement in an internal investigation to a third party; and
- failed to "curb the laddish culture in the workplace".
The above clearly amounted to a material breach by the employee of the implied term of trust and confidence.
The EAT decided that where an employee is in material breach of the implied term of trust and confidence he cannot rely on a subsequent material breach of the same term by his employer in order to claim constructive dismissal. That which was good for the goose, was also good for the gander.
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