Constructive Unfair Dismissal - What Is The Correct Test?
The Employment Appeals Tribunal (“EAT”) has recently confirmed the appropriate test in a case of constructive unfair dismissal.
The Employment Appeals Tribunal (“EAT”) has recently confirmed the appropriate test in a case of constructive unfair dismissal.
In Wright v North Ayrshire Council, the EAT reaffirmed the position from Nottingham County Council v Meikle that the Employer’s breach of contract only has to ‘play a part’ in the Claimant’s resignation. There is no requirement that the breach of contract be the principal reason or effective cause of the resignation.
The Claimant worked split shifts and endured a difficult time when her mother passed away and her partner had a stroke. Her unforgiving shift patterns made it difficult to care for her mother before she passed away, and made it difficult to care for her partner who was admitted to hospital.
The situation was exacerbated following (i) unsuccessful attempts to reorganise her working hours, (ii) the Employer’s failure to deal with three grievances raised by the Claimant, and (iii) the Employer making an allegation of theft against the Claimant which was ultimately unfounded.
The Claimant resigned and claimed constructive unfair dismissal. The Employment Tribunal (“ET”) accepted that there was a breach of contract and that the breach was fundamental in nature, two of the three elements required in constructive unfair dismissal claims.
Less clear was the final element of the test as to whether the Claimant had resigned in response to the Employer’s breach of contract, as there could have been more than one reason for the Claimant's resignation (was more than one reason for why the Claimant could have resigned), including the Employer’s breach of contract and the fact that the Claimant’s caring arrangements were hampered by her shift patterns.
The ET, in error, found that as the breach of contract was not the effective cause of the Claimant’s resignation, that the constructive unfair dismissal claim should fail. The EAT however found that the appropriate question to ask, was whether the breach of contract played any part in the dismissal. Here it did, so the appeal was successful and the case was remitted back to the ET.
Whilst not providing anything new or changing the previously accepted position, the case is a good reminder that any breach of contract on the Employer’s part could give rise to a claim of constructive unfair dismissal from an aggrieved Employee.