Bunning v G T Bunning & Sons Ltd

Constructive dismissal requires a fundamental breach of the employment contract, resignation in response to that breach, and no waiver or affirmation of the contract. Accepting a different role after an earlier breach may affirm the contract and waive that breach. A later breach supports constructive dismissal only if it is fundamental and causally connected to the resignation. A delayed response to a grievance will not necessarily amount to a repudiatory breach or a final straw. Appellate courts should not interfere with factual conclusions unless no reasonable tribunal could have reached them.

The appellant resigned after disputes concerning pregnancy-related workplace risk assessments, her transfer from the workshop to the stores, and the respondent’s failure to respond promptly to a letter raising concerns. An Employment Tribunal found pregnancy discrimination because the risk assessments were inadequate, but rejected the constructive-dismissal claim. The Employment Appeal Tribunal dismissed her appeal. The Court of Appeal considered whether either finding involved a material error of law.

1. Appeal dismissed. The Employment Tribunal had made no material error of law concerning discrimination or unfair dismissal. The case was remitted for the outstanding remedy issues, with a suggested directions hearing.
2. The discrimination finding embraced breaches at both stages of the respondent’s response under the Management of Health & Safety at Work Regulations 1999, together with detriments related to the appellant’s pregnancy. Any dispute about compensatable loss, including causation of the miscarriage, remained for the remedies hearing.
3. Under section 95(1)(c) of the Employment Rights Act 1996, constructive dismissal requires a fundamental breach and resignation caused by that breach. The Court of Appeal followed the contractual test in Western Excavating (ECC) Ltd v Sharpe [1978] ICR 221 and applied the requirement of demonstrable causation in Walker v Josiah Wedgwood & Sons Ltd [1978] ICR 744.
4. The Tribunal was entitled to find that the insistence on returning to the workshop involved a fundamental breach, but that accepting work in the stores waived or affirmed the contract. Later breaches concerning the stores were not treated as fundamental and did not cause the resignation.
5. The failure to answer the letter of 27 November by the requested date did not justify termination, alone or as a last straw. The Tribunal’s factual conclusions were permissible under the standard stated in Pedersen v Camden LBC [1981] ICR 674 (CA).

• Court of Appeal (Civil Division): Appeal from the Employment Appeal Tribunal dismissed; the case was remitted to the Employment Tribunal for the outstanding remedy issues.
• Employment Appeal Tribunal: Appeal dismissed on 12 November 2004.
• Employment Tribunal: After a rehearing, pregnancy discrimination was found, but constructive dismissal was rejected. The discrimination remedy was adjourned.