Constructive Dismissals - Refreshing Law Ltd - HR Insights, June 2019

Constructive Dismissal
Anna Denton-Jones
June 18th 2019

Ingredients the employee needs
to establish
• there was a fundamental breach of contract
on the part of the employer
• actual breach/anticipatory breach
• the employer’s breach caused the employee
to resign
• the employee did not delay too long before
resigning, thus affirming the contract and
losing the right to claim constructive dismissal.
navigating employment law

REPUDIATORY BREACH OF
CONTRACT
INGREDIENT ONE

Western Excavating (ECC) Ltd v
Sharp 1978
• For an employer’s conduct to give rise to a
constructive dismissal it must involve
a repudiatory breach of contract

• Lord Denning: ‘If the employer is guilty of
conduct which is a significant breach going to
the root of the contract of employment, or
which shows that the employer no longer
intends to be bound by one or more of the
essential terms of the contract, then the
employee is entitled to treat himself as
discharged from any further performance. If
he does so, then he terminates the contract by
reason of the employer’s conduct. He is
constructively dismissed.’

Fundamental breach of contract
• What are the terms of the contract?
• Has a term been broken?
• Was that breach a fundamental breach?

‘Fundamental’
• Is the breach fundamental?
• Effect on employee
• Objective
• Not a question of reasonableness
• Not a question of the employer’s intention

In practice
• Identify the alleged breach of contract.
• Establish the evidential basis of the claim.
• Satisfy the tribunal that the facts as proven
are sufficient in law to amount to a
repudiatory breach of contract.

Examples of things which are a
breach of contract
• Unilateral reduction in pay / commission
• Unilateral changes in job duties

breach of contract
• Insistence on working hours that not
contractually obliged to work
• Failure to provide employee with work they
are employed to do

breach of contract
• Suspension without pay in absence of
contractual term
• Layoff without a contractual term

OTHER BREACHES THAT MAY BE
FUNDAMENTAL BREACHES OF AN
IMPLIED TERM

Duty to promptly redress
grievances
• WA Goold (Pearmak) Limited v McConnell
1995

British Aircraft Corporation Ltd v
Austin 1978 IRLR 332 EAT.
• Failure to take reasonably practicable steps to
provide a safe system of work
• Failure to investigate complaints relating to
health and safety promptly and reasonably

Duty to provide a suitable working
environment
• Temperature

IMPLIED TERM OF TRUST AND
CONFIDENCE

Courtaulds Northern Textiles Ltd v
Andrew 1979
• EAT held that it was a fundamental breach of
contract for the employer, without reasonable
and proper cause, to conduct itself in a
manner ‘calculated or likely to destroy or
seriously damage the relationship of
confidence and trust between the parties’.

Woods v WM Car Services
(Peterborough) Ltd 1981.
• ‘To constitute a breach of this implied term it
is not necessary to show that the employer
intended any repudiation of the contract: the
tribunal’s function is to look at the employer’s
conduct as a whole and determine whether it
is such that its effect, judged reasonably and
sensibly, is such that the employee cannot be
expected to put up with it.’

Malik v BCCI 1997
• Lord Steyn – HL emphasised that there is a
breach of the term only where there is ‘“no
reasonable and proper cause” for the
employer’s conduct, and then only if the
conduct is calculated and likely to destroy or
seriously damage the relationship of trust and
confidence.

Leeds Dental Team Ltd v Rose
2014
• The test doesn’t require a Tribunal to make a
factual finding as to what the actual intention
of the employer was; the employer’s
subjective intention is irrelevant. If the
employer acts in such a way, considered
objectively, that his conduct is likely to destroy
or seriously damage the relationship of trust
and confidence……..

Omilaju v Waltham Forest 2005
• If on an objective approach there has been no
breach the claim will fail

Leach v The Office of
Communications [2012] IRLR 839)
• Court of Appeal cautioned against overusing
or invoking too easily alleged breach of trust
and confidence, stating that it is not a
convenient label to stick on any situation.

Breach of implied term of trust
and confidence
• Is always a fundamental breach Morrow v
Safeway Stores plc 2002 IRLR 9, EAT.

Examples of breach of trust and
confidence
• Refusing to investigate complaints
• Conduct which is ‘so intolerable that it
amounts to a repudiation of contract’
• Extreme refusal to award pay increase (where
everyone else has had one and being singled
out)
• Giving pension increases to members of one
union but not another

confidence
• Disciplinary sanction out of all proportion with
offence
• Ineptitude in disciplinary process
• Gogay v Hertfordshire County Council 2000

Suspension
• Was there a reasonable and proper cause for
suspension?
• Recording your decision making process
• Mayor and Burgesses of the London Borough
of Lambeth v Agoreyo [2019]

confidence
• Failing to give support so employee could
carry out their duties free from harassment
and disruption by colleagues
• Failure to investigate allegations of sexual
harassment or to treat incidents with
sufficient gravity
• Persistent failure to make reasonable
adjustments Miekle

• Dressing down in front of colleagues
• Failing to provide an impartial person to hear
grievance
• Giving a false reason for dismissal

• Telling the employee on sick leave that there
are concerns about them
• Excessive workload
• Intolerable working environment

The Governing Body of Tywyn
Primary School v Aplin 2017
• Flawed disciplinary process – unconscious bias

Connell v Mid Essex Hospitals
Services NHS Trust 2019
• Breach of trust and confidence arose during
redundancy process as a result of failure to
look at alternative employment properly

LAST STRAWS

Cummulative effect of minor
issues
• A course of conduct can cumulatively amount
to a fundamental breach of contract entitling
an employee to resign and claim constructive
dismissal following a ‘last straw’ incident even
though the last straw by itself does not
amount to a breach of contract — Lewis v
Motorworld Garages Ltd 1986 ICR 157, CA.

Logan v Commissioners of
Customs and Excise 2004 ICR 1, CA
• Where an employee is complaining about an
employer’s course of conduct culminating
with an act alleged to constitute the last straw,
there is no need for there to be ‘proximity in
time or in nature’ between the last straw and
the previous act of the employer

Omilaju
• The final straw must contribute something to
the breach, although what it adds might be
relatively insignificant:
• The final straw must not be utterly trivial.
• The act does not have to be of the same
character as earlier acts complained of.
• It is not necessary to characterise the final
straw as "unreasonable" or "blameworthy"
conduct in isolation, though in most cases it is
likely to be so.

• An entirely innocuous act on the part of the
employer cannot be a final straw, even if the
employee interprets the act as hurtful and
destructive of their trust and confidence in the
employer. The test of whether the employee's
trust and confidence has been undermined is
objective

Kaur
• Entitled to rely on the totality of the
employer's acts notwithstanding a prior
affirmation of the contract, provided that the
later act, the "last straw", formed part of the
series. The effect of the final act was to revive
their right to terminate their employment
based on the totality of conduct.

Tolson v Governing Body of
Mixenden Community School
2003
• It is no defence to argue the employee failed
to raise a grievance about the employer’s
conduct

HAS THE EMPLOYEE ACCEPTED THE
BREACH?
Ingredient 2

Société Générale, London Branch v
Geys [2012] UKSC 63
• An employer's repudiatory breach does not
bring the contract to an end automatically:
the contract is not terminated until the breach
is accepted by the employee

Has the employee actually
resigned?
• “that’s it I’ve an f****** nuff”
• “I am leaving, I want my cards”
• “I am resigning”

Can the employee ‘jump’ but give
long notice?
• Cockram v Air Products 2014 – 7 months
notice when 3 months in contract
• Buckland v Bournemouth University Higher
Education Corporation 2010 - to end academic
year.

What evidence is there of the
reason for the employees
resignation/causation?
• Weathersfield Ltd t/a Van and Truck Rentals v
Sargent 1999 CA held that it was not
necessary for an employee, in order to prove
that a resignation was caused by a breach of
contract, to inform the employer immediately
of the reasons for his or her resignation.

What evidence is there of the
reason for the employees
resignation/causation?
• Walker v Josiah Wedgwood & Sons 1978
“the employee should leave because of the
breach of the employer’s relevant duty to him,
and this should demonstrably be the case. It is
not sufficient…if he merely leaves. And….it is not
sufficient if he leaves in circumstances which
indicate some ground for his leaving other than
the breach of the employer’s obligation to him”.

Repudiatory breach need not be
the sole reason provided it is an
effective cause
• Abbycars (West Horndon) Ltd v Ford EAT
0472/07, ‘the crucial question is whether the
repudiatory breach played a part in the
dismissal’, and even if the employee leaves for
‘a whole host of reasons’, he or she can claim
constructive dismissal ‘if the repudiatory
breach is one of the factors relied upon’.

AFFIRMATION

Affirmation/waiver of the breach
• Lord Denning MR Western Excavating (ECC)
Ltd v Sharp 1978 the employee ‘must make up
his mind soon after the conduct of which he
complains: for, if he continues for any length
of time without leaving, he will lose his right to
treat himself as discharged’.

How long?
• Reasonable period – depends on the
circumstances including length of service,
nature of breach and whether employee has
protested

Sick absence and receipt of sick
pay
• Caused by breach
• Keeping the contract alive
• Chindove v William Morrison Supermarkets
2013
• Mari (Colmar) v Reuters Ltd 2015

• Is the employee clearly working under
protest?
• Is the employee clearly trying to establish the
status of something eg:- via their TU rep?

How this dovetails with the ’last
straw’ doctrine
• Breach of mutual trust and confidence
• Affirmation empties the scales
• A fresh straw then lands in the empty scale
• This can revive the former breach
Kaur

@refreshinglaw www.refreshinglawltd.co.uk
Contact Us:
adenton@refreshinglawltd.co.uk
029 2059 9993
07977 545480

Constructive Dismissals - Refreshing Law Ltd - HR Insights, June 2019

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