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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Is there an equivalent to constructive dismissal in non employment

Resolved Question:

Is there an equivalent to 'constructive dismissal' in non employment terms? Acting in such a way as to remove all trust and confidence in the other party, making ones position within a service supplier/client context impossible and thus the breakdown of the relationship? My daughter's child minder has traduced her and her children in writing and now expects my daughter to continue with the relationship for a further 4 weeks notice period. Hence the constructive dismissal reference, because the childminder's action has damaged all confidence and made it impossible to salvage the relationship. Please advise.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. You say this i non-employment issue but isn't the childminder employed by your daughter? Also what comments were made and who were made to?

Ben Jones :

Hi, not sure if you saw my initial query above? You say this is non-employment issue but isn't the childminder employed by your daughter? Also what comments were made and who were they made to?

Customer:

iH

Customer:

tha

Customer:

hi ben sorry for the delay. the childminder is a service provider not an emply

Customer:

sorry this is v difficult on my phone i will have to do it on my laptop asap ann

Ben Jones :

Hi, no problem I understand she is a service provider, so a contractor basically, rather than an employee. Whilst constructive dismissal occurs in an employee-employer relationship, it is also possible to have a similar occurrence in a normal contractual relationship, such as a service provider and a client. Whilst the term is not the same, you are really looking at breach of contract matter where one party has breached the contract by directly breaching its written terms or acting in such a manner that the breach goes to the root of the contract and makes it further performance impossible. In this case there is no specific breach of contract so you are really looking at any conduct that is serious enough to go to the root of the contract and make its further operation impossible. So for example, theft would not be a specific term but obviously would damage the relationship to such an extent that it could make the continued relationship impossible. The same could be argued for the comments that were made although it would of course depend on what they were, whether they could be justified, where they were made, how they affected your daughter in front of others and so on. There are many factors that would be considered if this was to go to court but you can argue that it has breached the contract.

Customer:

Thanks yes not unreasonably the comments seem to make my daughter's continued use of the service impossible in the circumstance. Also the fact that she withdrew her service at v short notice (2130) for the 0900 start next day for no reason - the only justification within the contract is given as eg family bereavement ( clearly family sickness or some genuine emergency is acceptable) but on the spurious basis that she didn't like to be asked a question relating to something that happened during the day ie a question relating to a sandwich! seems to pushing the 'emergency' a bit far. These 2 events plus subsequent information that has come to light about the childminder's conduct - sending an unauthorised person to collect 1 child from nursery, leaving the other in a state of undress while she struggled to control her own child in another part of a village hall, apparently discussing confidential info, all seem to break the national standards to which she is supposed to adhere.

Customer:

Sorry I didn't realise 'return' meant send! In effect then what I was asking initially in relation to 'constructive dismissal' which I take to mean putting an employee in a position where they find it impossible to continue in that employment and so feel they have been forced to leave - is that my daughter finds that she has been forced out of the contract with the childminder because of the childminder's actions. There had been no intention to leave the childminder before the bombshell letter on Monday night. Hence my question asking if there is a name for this sort of action on behalf of one party which forces the other into terminating the contract immediately because of the other's actions? My daughter feels her position to be untenable but the childminder is chasing 4 weeks money!

Ben Jones :

Hi, the tern itself would be a termination due to a fundamental breach of contract by the other side. There is no specific term like constructive dismissal in an employment setting

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