Claim

Tribunal Overview

Jurisdiction: Jersey Employment and Discrimination Tribunal

Date of Judgment: 12 October 2025

Presiding Officer: Advocate Dr Elena Moran, Chairman

Claimant: Mr. David Foley

Respondent: Jersey Electricity PLC

Representation: Robert Winspear (42 Bedford Row) for the Respondent

Claim: CONSTRUCTIVE UNFAIR DISMISSAL –

Outcome: Claim dismissed

Legal Framework Applied

The Tribunal applied the principles under the Employment (Jersey) Law 2003, focusing on:

Article 62 EJL which sets out the circumstances in which an employee is dismissed including the circumstance which is commonly known as constructive dismissal: 

In order to  find constructive dismissal a four stage test is considered

 1) the employer must be in breach of either an express or an implied contractual term;

(2) the breach must be fundamental, amounting to a repudiatory breach;

(3) the employee must resign, at least in part, in response to the breach; and

(4) the employee must not have waived the breach and affirmed the contra

In this case the Claimant alleged that there was a breach of the term of mutual trust and confidence that is implied into every employment relationship. Any breach of this term is considered a fundamental breach. However, for there to be a breach of this term, the conduct complained of must be seriously unreasonable, sufficient to destroy or seriously damage the relationship between the parties, so that it cannot continue as it did before.

Application of case law

Historically it has been found that if an employee is given an ultimatum – “Resign or be sacked” the courts have deemed this to be a dismissal.

In this case and relying on several, consistent UK precedents the Judge ruled that the circumstances were different and that if a Claimant resigns after being given the option to resign or face dismissal, and if they do so to avoid the consequences of their own actions, this cannot be properly characterised as a dismissal. The employee may well feel pressured to resign, but it may be pressure of their own making and, in such circumstances, they would potentially have the benefit of avoiding the stigma of a misconduct dismissal.

Further, the judge accepted that the claimant had a choice and could have argued that some lesser sanction should have been applied instead of termination, he could have refused to resign and instead asserted his right to some form of proper process, or, at the very least, asked about the dismissal process or whether any lesser sanctions were an option.

The claimant had voluntarily ended the relationship by resigning, therefore there had been no dismissal unfair, constructive or otherwise.

Strategic Takeaways for Employers

There can often be circumstances, for a variety of reasons, when employers may wish to explore a resignation as an alternative to dismissing using a disciplinary process. If the conversation is on the lines of “there will be a hearing next week and you will be sacked – or you can resign today” – employers should expect to lose if the case comes before the Tribunal.

However, employers will be on safe ground to hold such conversations but only if they prepare a measured, thoughtful and carefully worded script. Input and advice from an HR or employment lawyer would be strongly recommended.