The EAT decision in this case confirms that a constructive dismissal claim can succeed even when the “last straw” act is innocuous. The Tribunal should have considered whether the earlier conduct established a fundamental breach of contract which had not been affirmed such that the innocuous conduct contributed to that.
The Facts
Mr Williams, a teacher, was a disabled person due to a mental impairment which affected his reaction to stress and his demeanour and behaviour in stressful situations.
Mr Williams was suspended as a result of allegations concerning a child protection matter. He was not given any information about the allegations. The investigation into the allegations concluded that there was no case to answer and he returned to work, however, he did not return to his previous teaching role.
Mr Williams was subsequently told that the specific allegation against him was that he had manhandled a child. However, he was still not told the identity of the child or of the person who had reported the allegation. He raised a grievance in relation to the school’s handling of the disciplinary process which was, as a result, put on hold whilst Mr Williams’ grievance was dealt with.
It was subsequently discovered that whilst suspended Mr Williams had downloaded a large number of documents from the school’s systems so as to assist him in his claim that the school had treated him unfairly. As a result, Mr Williams was re-suspended and a second disciplinary investigation was initiated relating to an alleged breach of the school’s data protection policy. The investigation revealed that one of the downloaded documents had been sent to his trade union representative who was also a fellow teacher at the school.
Mr Williams’ grievance was ultimately unsuccessful (as was his grievance appeal) and he wrote a letter of complaint about his treatment generally and also in relation to the school’s refusal of his further requests for information about the allegations against him, including, again, the name of the child he had allegedly manhandled and the name of his accuser. Within his letter, Mr Williams asserted that he had lost all faith in his employer to treat him properly.
Shortly after, Mr Williams wrote a letter of resignation and claimed that the reason for his resignation was that his solicitor had informed him that his union representative was not allowed to contact him.
Decision:
Mr Williams’ claim of constructive dismissal based on a last straw argument was unsuccessful at Tribunal. The Tribunal determined that his last straw (being the discovery that his union representative was not permitted to contact him) was not unreasonable on the part of the school given the connected ongoing disciplinary investigations and was, therefore, innocuous and did not amount to a breach of the implied term of mutual trust and confidence.
On appeal to the EAT, it was held that the Tribunal had been wrong to conclude that because the alleged last straw was innocuous it did not contribute anything to a breach of the implied duty of mutual trust and confidence. The EAT said that the correct approach in such circumstances is for the Tribunal to consider whether the earlier conduct itself amounted to a breach of the implied duty of mutual trust and confidence. Where an earlier breach has not been affirmed a later act can contribute to the decision to resign.
HHJ Auerbach held that:
“So long as there has been conduct which amounts to a fundamental breach, the right to resign in response to it has not been lost, and [provided] 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.”
The Tribunal had erred by assuming that the last event in time (the instruction to the union representative not to contact Mr Williams) 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 Mr Williams’ decision to resign.
What does this mean for you?
Employers should be aware that even reasonable and seemingly innocuous acts on their part may revive an earlier fundamental breach of contract, provided that the employee has not already affirmed that breach. Consequently, if the earlier fundamental breach contributes to the employee’s decision to resign, a constructive dismissal claim may succeed even though the last straw identified by the employee is innocuous and only slightly contributes to the breach of the implied term of mutual trust and confidence.
0 Comments