Posted By Andrew Shaw Can anyone help me out with a legal issue? We're in an Employment Tribunal situation where an employee is claiming Constructive Dissmisal. He is claiming that our failure to adhere to H&S legislation constitutes and breach of his Implied Terms of Contract of Employment. Does anyone know if this is true. (assuming he is able to prove the breach of H&S legislation) Andy

Posted By steve e ashton Andrew: I am not a lawyer or tribunal chairman, but for what it's worth, my (layman's) opinion would be that the short answer to your deceptively simple question is 'it depends'... (sorry!): It is accepted as an implied term in all conditions of employment that the employer will take reasonable care for the health and safety of his employees. Compliance with the law is just one of the indicators of whether that duty of care is fulfilled. If the employer fails to comply with a statutory duty in a way and to an extent that causes the employee to conclude that the employer does not care for his health and safety then - if the breach is sufficiently severe, the employee may take that as evidence that the employer has repudiated the contract. He (the employee) may conclude that the employer has terminated the contract and thence claim for constructive dismissal. For the claim to be successful, the breach alleged must go to the root of the employment contract, and not relate to superficiality. A simple 'bureaucratic' breach (such as failure to review a health and safety policy for example) is unlikely to be construed as going to the root of the contract, and is unlikely to be accepted as repudiation. More specific, and direct risk must be shown. So asking someone to work in a foundry without supplying appropriate foundry boots and overalls, or forcing individuals to enter a confined space without adequate precautions - would most likely be accepted as grounds for repudiation and justification for a claim of constructive dismissal. Unfortunately, in the real world, there are frequently many shades of grey, and the tribunal outcome is most likely to depend on how 'reasonable' both sides have been (as seen by the tribunal). Did the employee raise his concerns with management. Did he give them chance to correct the failing? Did the employer have a plan to correct the failing at some future date? Did the employer disagree with or counter the employees allegations?. Without more specifics - which I would advise you against disclosing here - it is almost impossible to provide an accurate, specific answer in this open public forum without writing a book... Steve

Posted By Raymond Rapp Andrew As I understand it, an implied term takes into account those terms that are not expressly defined in the contract but would be reasonable to assume are included. Therefore the duty of an employer to look after the health and safety of his employees would, in my opinion, be an implied term within the contract. Ray

Posted By steve e ashton Andrew: You're welcome. Another thing you may need to be aware of: Tribunals often 'assume' that leaving a job is a last resort - that very few employees would willingly walk out of employment (and then claim constructive dismissal). There is a perception that the tribunals will therefore 'favour' the employee over the employer. If there is a 50/50 judgement to be made, the claim is most likely to be settled in favour of the employee. A history of similar claims from the same individual may influence the tribunal in the other direction. Steve

Posted By Steve Cartwright Andrew If you type implied terms of employment contract in google and follow the business link it will explain it all to you. Steve