WARNING: Employee only needs to have resigned "partially" in response to a fundamental breach for the test for constructive unfair dismissal to be made out!

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19 May, 2020

An employee can be considered dismissed if they have resigned, with or without notice, in circumstances in which they are entitled to terminate their contract of employment without notice by reason of the employer's conduct.

Under the well-established "last straw" doctrine, an employee can resign in response to final act or breach in a series of conduct, which taken cumulatively amounts to a breach of the implied term of trust and confidence.

Usually the last straw must be sufficiently serious to justify the employee resigning without delay, but what if a final straw is 'entirely innocuous' - does that mean all previous conduct by an employer is irrelevant? No, held the EAT in Williams v Alderman Davies Church in Wales Primary School. The fact that the final straw is not harmful, or offensive does not mean that the previous conduct of the employer has not contributed to the resignation of the employee.

In Williams v Alderman Davies Church in Wales Primary School, the Claimant failed in a claim of constructive unfair dismissal before the Employment Tribunal. There was a final act which was decided to be entirely innocuous by the Tribunal. They decided that meant, despite previous poor conduct which had not been affirmed, the Claimant had not resigned in response to a fundamental breach of contract. The EAT decided that was the wrong approach.

If the Employment Tribunal had applied the law correctly, it would have found the Claimant successful and that there was a constructive dismissal. It found that there was prior conduct which contributed to the decision to resign, which amounted to a breach of the implied term of mutual trust and confidence.

The Tribunal found that the withholding of certain information from the Claimant in connection with disciplinary charges could not amount to 'practice' for the purposes of a complaint of failure to comply with the duty of making reasonable adjustments (provision, criteria or practice (PCP) applied by the employer puts a disabled person at a substantial disadvantage in comparison with those who are not disabled). The Tribunal should have considered whether there was a sufficient element of repetition or persistence in the Claimants own case for a practice to be found.

The Tribunal had erred by assuming that the last event in time was the last straw. It failed to consider the possibility that the school's earlier conduct had itself established a fundamental breach, which had not been affirmed, and which also subsequently contributed to the Claimant's decision to resign.

So long as there has been conduct which amounts to a fundamental breach, the breach has not been affirmed, and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent, conduct has also contributed to the decision to resign, it would be true in such a case that in point of time, it will be the later conduct that has 'tipped' the employee into resigning; but as a matter of causation, it is the combination of both the earlier and the later conduct that has together caused the employee to resign.

This is not welcome news for employers, as it does relax what has otherwise been a notoriously high hurdle to cross for employees. That said, there is still a requirement for a fundamental breach to have occurred and for the resignation to at least be partly in response to that. Furthermore, the breach must not have been affirmed - this is key since there is still an argument that by delaying a resignation the employee may have accepted or affirmed the breach.

For more information contact Trishna Modessa-Parekh in our Employment & HR department via email or phone on 01772 220215. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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