Fasuyi v. Compass Contract Services (UK) Ltd

In a constructive dismissal case based on non-payment of contractual wages, the tribunal must determine every wage complaint relied on and assess whether the breaches, individually or cumulatively, were repudiatory. A grievance protesting underpayment does not affirm the employment contract. Continuing to work may amount to affirmation, but that depends on the circumstances and must be separately assessed. Where necessary factual findings are missing, the appellate tribunal should remit the constructive dismissal issue rather than substitute its own conclusion.

The Employment Tribunal dismissed the claimant’s constructive unfair dismissal complaint but upheld a breach of contract concerning payment for Boxing Day 2008. The claimant had also relied on alleged non-payment for work on 23 July 2008 and underpayment during a period of suspension, but the tribunal made no findings on those claims.

The tribunal treated the claimant’s participation in a staff petition seeking double-time payment, together with his continued work, as affirmation of the contract. The appeal concerned whether the omitted wage findings were material and whether the petition constituted affirmation.

1. Appeal allowed. The Employment Tribunal’s conclusion on constructive dismissal could not stand because it had failed to determine whether wages were due for 23 July 2008 and during the suspension period. Those matters were relevant to whether the employer had committed a repudiatory breach.
2. The tribunal also erred in treating the claimant’s signature of a staff petition protesting non-payment of wages as affirmation of the contract. Raising a collective grievance about underpayment is not, in itself, conduct affirming the employment contract.
3. The tribunal had found a breach concerning Boxing Day pay. It was required to consider that breach together with any further established wage breaches, and determine whether they amounted to a repudiatory breach. The de minimis principle had no application to the deliberate non-payment of contractual wages. Short continued service under protest does not necessarily waive the breach.
4. If a repudiatory breach was established, the tribunal had to decide whether the claimant affirmed the contract by continuing to attend work during January 2009 and, if not, whether the breach was an effective cause of his resignation.
5. The EAT declined to substitute a finding of constructive dismissal because further factual and evaluative conclusions were required. The matter was remitted to the same Employment Tribunal, chaired by Employment Judge Houghton, for reconsideration on oral submissions without further evidence. If constructive dismissal was established, the dismissal would be unfair because the respondent had advanced no potentially fair reason. Remedy would then be determined.

• Employment Tribunal: Judgment promulgated on 28 September 2009. The complaint of unfair dismissal was dismissed, although a breach of contract concerning Boxing Day pay was upheld.
• Employment Appeal Tribunal: Appeal allowed. The constructive dismissal issue was remitted to the same Employment Tribunal for reconsideration.