A recent case considered whether the employer’s actions had to be the sole reason for an employee to claim constructive dismissed.
Constructive dismissal is the term used where an employee resigns in response to their employer’s breach of the employment contract. The employer’s conduct must breach a fundamental term which goes to the root of the contract and is termed “a repudiatory breach”. The employee must then resign in response to this breach. If the employee has the requisite service they may also be able to claim unfair constructive dismissal.
Ms Wright had been a ‘care at home assistant’ for 7 years for North Ayrshire Council (the “Council”). She brought three grievances against the Council which were never properly answered; two were ignored and one was delayed, and she was also falsely accused of theft. At the same time, she needed to care for her ill mother and partner and these demands did not fit with her work shift patterns.
She resigned and claimed that she was doing so as result of the Council’s repudiatory breach of her employment contract. The Council said she left because the role no longer suited her personal circumstances. Whilst the Employment Tribunal commented that the Council’s treatment of Ms Wright showed a “complete lack of consideration’”, they found that the reason for her resignation was her personal circumstances and she had therefore not been constructively dismissed.
Ms Wright appealed the decision. The Employment Appeal Tribunal (“EAT”) has sent the case back to the Employment Tribunal to consider whether the Council’s breaches “played a part” in Ms Wright’s resignation. For the purposes of a finding of constructive dismissal, the EAT held that it did not matter if the employee had other reasons for leaving the organisation provided the employer’s breach of contract had been a repudiatory or serious breach and formed at least part of the employee’s reason for leaving.
The EAT commented that the different reasons for her resignation would however matter if and when the court determined the financial award for the successful claimant, as such other factors may reduce the sum of the award.
If an employer’s actions amount to a repudiatory breach of contract, the employee may still successfully argue constructive dismissal even if there are other unrelated reasons.
Even if this results in a reduced award (the maximum of which, for those with the requisite service to claim unfair dismissal, is capped at the lower of £74,200 or a year’s salary) for some claimants the financial award is not always the predominant concern. A finding of constructive dismissal can bring additional benefits to the employee such as (i) ceasing to be bound by their former restrictive covenants and (ii) taking the Employment Tribunal’s findings of fact to the High Court in the context of a high value bonus claim.
Ms Elaine Wright v North Ayrshire Council: http://www.bailii.org/uk/cases/UKEAT/2013/0017_13_2706.html
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