Employment lawBy Martin Edwards, Mace & Jones, Liverpool

Constructive dismissalCommissioner of Police of the Metropolis v Harley 2000 IRLR 263The Employment Appeal Tribunal (EAT) rules that a tribunal erred in finding that an applicant had been dismissed within the meaning of the Disability Discrimination Act 1995 when she resigned without notice because she had been downgraded following disciplinary proceedings.

According to the EAT, the phrase 'by dismissing him' in section 4(2)(d) of the Act does not include constructive dismissal, which involves an act of election by the employee based on a repudiatory breach of contract by the employer.

The EAT added that if in a case of constructive dismissal, the employee had been 'subjected to any other detriment', or if the EAT was wrong in excluding a constructive dismissal from the phrase 'by dismissing him', the three-month time limit for presenting complaints runs from the date of the alleged repudiatory breach by the employer - not from when the employee decides to treat that repudiatory breach as ending the contract.

The reasoning in Cast v Croydon College (1998) IRLR 318 was preferred to that in Reed v Stedman (1997) IRLR 299.The editor of the IRLR understandably criticises the EAT for failing to consider the decision in Derby Specialist Fabrication Ltd v Burton (2001) IRLR 69, in which a different division of the EAT, considering a race discrimination case, declined to exclude constructive dismissal from the word 'dismissal'.

The view of the Court of Appeal would be welcome.

Rossiter v Pendragon plc (2001) IRLR 256In this intriguing case, the EAT allowed an appeal against a tribunal's decision that an employee had not been entitled to claim constructive dismissal on the ground that there had been a substantial change in his working conditions to his detriment following a transfer of undertaking.

The tribunal took that view because the change did not amount to a fundamental breach of contract.

However, the EAT said that in the context of the transfer of an undertaking, there is no requirement for there to be a breach of contract to give rise to an entitlement to resign and claim constructive dismissal under section 95(1)(c) Employment Rights Act 1996.

The law should be construed purposively so as to give effect to the acquired rights directive.

According to the EAT, it is implicit in the European Court's decision in Merckx (1996) IRLR 467, that article 4(2) of the directive places responsibility for termination of employment on the employer if a transfer involves a substantial change in working conditions to the employee's detriment - regardless of whether that change constitutes a breach of contract.

So constructive dismissal under section 95(1)(c) of the 1996 Act has to be given a different interpretation depending whether the right claimed is purely domestic or one which has a special meaning by virtue of the operation of the directive and the regulations giving it effect.Trade disputesP v National Association of Schoolmasters/Union of Women Teachers, The Times,3 May 2001The High Court ruled that the inducement of industrial action by a trade union whose members refused to accept a head teacher's directions to teach a child in a classroom with other pupils, on the ground that the child was disruptive and 'unteachable', amounted to action pursuant to a trade dispute as to their terms and conditions of employment.That action was thus not unlawful under section 235A Trade Union and Labour Relations (Consolidation) Act 1992 as amended.