Case details
Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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).
The court’s approach to earlier authorities
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Appellate history
- 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.
Lower court decision
Key cases cited
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Cases citing this case
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