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What is the correct test for constructive dismissal?

Posted on 4th November 2013
Case law

Does a repudiatory breach of contract by an employer need to be the main reason for an employee’s resignation or is it sufficient that it is one of the reasons for the resignation? This is a point clarified by the Employment Appeal Tribunal.

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Adrian Green Adrian
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Senior Employment Law Solicitor Telephone: 01473 694403

the repudiatory breach by the employer does not need to be the only or even the most important reason for the employee resigning

Ms Elaine Wright v North Ayrshire Council UKEATS/0017/13

Background

In certain situations an employee may resign and claim they have been constructively dismissed. To succeed the employee must show that the:

  • employer breached a fundamental term of the contract of employment;
  • employee resigned because of the breach; and
  • employee has not accepted the breach and affirmed the contract of employment.

The facts

Ms Wright was employed as a 'Care at Home Assistant' by North Ayrshire Council (‘NAC’).

In 2010 Ms Wright raised three grievances with NAC. NAC failed to respond to two of the grievances and did not respond quickly enough to the third. In addition Ms Wright was wrongly accused of theft.

As well as her problems at work Ms Wright had a difficult personal life. Her mother passed away and around the same time her partner suffered a serious stroke and Ms Wright needed to care for him. Her shifts at work made this difficult. She tried to reorganise her work pattern to allow her to care for her partner. 

On 24 November 2010 Ms Wright resigned and later submitted a claim for constructive unfair dismissal. She claimed NAC had breached the implied term of trust and confidence by failing to properly deal with her grievances and its poor treatment of her.

The decision

The employment tribunal found that NAC had breached a fundamental term of the employment contract and Ms Wright had not affirmed the contract. As to why she had resigned, the employment tribunal decided that ‘the effective cause’ of her resignation was her inability to continue to work full-time and care for her partner. The employment tribunal therefore decided, as the treatment by NAC was not the effective cause, Ms Wright had not been constructively dismissed. Ms Wright appealed.
 
The EAT concluded that the employment tribunal had used the wrong test. The repudiatory breach does not need to be the only or even the most important reason for the employee resigning. It is sufficient that it is one of the reasons for the resignation. The case has been sent back to the employment tribunal to decide if the treatment by NAC was also a factor.

In practice

This case has practical implications for two reasons.

Firstly, it highlights the importance of dealing with grievances. Failure to respond to and deal with them promptly may amount to a repudiatory breach of contract entitling the employee to resign and claim constructive dismissal.

Secondly, claims for constructive dismissal can succeed even if the employee has more than one reason for resigning. They may have found a new job but if the actions of the employer is one of the reasons they are leaving the claim will still be successful.

At Quantrills our specialist employment law solicitors can advise you on how best to handle even the most difficult employee grievances.

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