Does a fundamental breach of contract by the employer have to be the predominant or main cause of an employee’s resignation for them to succeed in a constructive dismissal case?

In the recent case of Wright v North Ayrshire Council, the Employment Appeal Tribunal (EAT) has said no, the fundamental breach of contract by the employer only needs to have “played a part” in the decision to resign.

The Facts

Ms Wright was employed as a care at home assistant by North Ayrshire Council until she resigned in November 2010 claiming constructive dismissal. She claimed that the Council had fundamentally breached her contract of employment by not responding to two grievances that she had raised (in relation to the way the Council had treated her in respect of her caring responsibilities for her sick mother) and responding late to a third grievance.  The Council had also made an allegation of theft against Ms Wright which was totally unfounded.

The Tribunal in this case found that Ms Wright had proved (as she was required to do) that there had been a breach of contract by the Council and that the breach was so fundamental that it indicated that the Council had abandoned and refused to perform its side of the contract. The question was therefore whether Ms Wright had resigned in response to the breach as required under the case law relating to constructive dismissal.

Prior to her resignation, Ms Wright was experiencing difficult personal circumstances in that her mother had died in January 2010 after a long illness and then her partner had suffered a serious stroke which meant that she had to take care of him.  Attempts to reorganise Ms Wright’s split shifts to accommodate her caring duties had been unsuccessful.

The Tribunal found that Ms Wright’s motives for resigning had been mixed, in part to do with the Council’s breach of contract and in part to do with her personal circumstances, which made it desirable for her to leave work to care for her ill partner. The Tribunal found that although Ms Wright was unhappy about the way she had been treated by the Council, in reality she resigned because she could not continue her full time position and take care of her partner and that this was “the effective cause” of her resignation. 

The Tribunal therefore held that Ms Wright had not been constructively dismissed.  She appealed to the EAT

The EAT’s decision

The EAT held that the Tribunal had made a error of law by asking itself what the effective (interpreted by the Tribunal to mean the predominant, principal, major or main) cause of Ms Wright’s resignation had been. The EAT referred to previous case law and, in particular, the Judge’s comment in the case of Abbey Cars (West Horden) Ltd v Ford that “the crucial question is whether the repudiatory [i.e. fundamental] breach played a part in the dismissal”.  The Judge in this case had stated that even if the employee leaves for “a whole host of reasons”, that employee can still claim that he or she has been constructively dismissed if the fundamental breach of contract by the employer is one of the factors taken into account by the employee. The EAT therefore held that a Tribunal need not search for one cause which predominates over others but simply ask itself whether the fundamental breach by the employer “played a part” in the employee’s decision to leave.

The EAT upheld Ms Wright’s appeal and remitted the case to the same Tribunal to determine whether the Council’s fundamental breach of contract “played a part” in Ms Wright’s resignation.  If so, she would succeed in her constructive dismissal claim, although the EAT suggested that the Tribunal may wish to evaluate whether in any event Ms Wright would have left her employment and adjust any award of compensation accordingly.

Guidance for Businesses

This is a timely reminder for businesses that if an employer has committed a fundamental breach of an employee’s contract of employment, it can rarely rely on other reasons for the employee’s resignation to defend a claim for constructive dismissal.

As well as the example given in the present case of difficult personal circumstances which may have a bearing on an employee’s decision to resign, an employer may also seek to rely on the fact that the employee is resigning having been offered another job.  However, to rely on such reasons, the employer must be able to say that the breach of contract played no part in the decision to resign.  The breach does not have to be the principal reason for the resignation but if it was a reason (i.e. it played a part in the employee’s decision to look for another role or accept an offer they had received) then the employee will be successful in their claim of constructive dismissal.