The EAT decision in Upton-Hansen Architects Ltd v Gyftaki is a reminder to employers facing a constructive unfair dismissal claim that they should plead a potentially fair reason for dismissal even if they are disputing that a dismissal has occurred. An employee asked for a short period of unpaid leave to travel to Greece for family reasons. There was confusion about whether her employer had agreed to her request and it was not definitively declined until the evening before she was due to travel. She travelled anyway and when she returned to work she was suspended pending an investigation. She resigned in response to her suspension, arguing that it was a breach of the implied duty of trust and confidence.
The tribunal upheld her claim. Suspension was not warranted in the circumstances and when taken with other matters there had been a breach of the implied duty. The employee had therefore been dismissed and it followed "almost inevitably" that she had been unfairly dismissed. On appeal, the EAT accepted that a constructive dismissal will not necessarily be unfair. However, to avoid a finding of unfair dismissal, the employer will have to show a potentially fair reason for dismissal. If it is able to do so, the fairness of the dismissal will be considered.
In this case, the employer had not pleaded a potentially fair reason for dismissal in its grounds of resistance. It should have done so if it wanted to argue that any dismissal was fair. In any event, an argument that misconduct was the reason for dismissal failed. It was the suspension that led to the employee's resignation and the relevant question was what the reason for the suspension was. This was not the employee's absence per se, but her managers' fear about how she might react to being told about a disciplinary investigation. This was not a reason relating to her conduct.
Okedina v Chikale involved a dispute between a live-in domestic worker and her employers. The Court of Appeal had to decide whether she could proceed with national minimum wage and working time claims in relation to a period after her domestic worker visa expired. Although the employer argued that the doctrine of illegality meant she could not, the Court of Appeal disagreed.
The defence of statutory illegality applies where legislation prohibits the making of a contract or provides that it, or one of its terms, is unenforceable. Common law illegality applies where the formation or performance of a contract would be contrary to public policy. For common law illegality to apply, the employee must have been a knowing participant in the illegal performance.
At the date of the events in question, there was nothing in the Immigration, Asylum and Nationality Act 2006 that prevented an employer and employee from entering into a contract of employment. The statute imposed a civil and/or criminal penalty on an employer that employed someone without the right to work in the UK, but did not evince a clear statutory intention that such employment contracts should be unenforceable. The defence of statutory illegality was not available in this case, and the finding that the worker had not knowingly participated in illegality because her employer had dealt with immigration issues on her behalf meant that the doctrine of common law illegality did not apply either.