Wright v North Ayrshire Council

In a constructive-dismissal claim, a repudiatory breach need not be the sole, principal or predominant cause of resignation. Where there are concurrent reasons, the question is whether the employee resigned in response to the breach: it is sufficient that the breach played a part in the resignation.

A tribunal errs if it ranks mixed causes and asks only which was the effective cause. If the breach played no part and resignation was solely for an unconnected reason, the claim fails. The relative importance of other reasons may, however, affect compensation.

The claimant, employed by the Council as a care-at-home assistant, resigned and alleged constructive unfair dismissal. The Employment Tribunal at Glasgow dismissed the claim. It found that the Council had committed serious breaches going to the root of the contract, including its handling of grievances and an unfounded allegation of theft, but held that the effective cause of resignation was the claimant’s inability to combine full-time work with caring for her partner.

The claimant appealed. The central issue was whether, where resignation had potentially mixed causes, the tribunal had wrongly required the employer’s repudiatory breach to be the predominant cause rather than asking whether it played a part in the resignation.

1. Appeal allowed and remitted. The Employment Tribunal erred in law by treating constructive dismissal as requiring identification of the effective, principal or predominant cause of resignation.

2. The contractual approach to constructive dismissal requires a repudiatory breach, resignation in response to that breach, and no prior affirmation. Once a repudiatory breach is established, the material question is whether the employee accepted it by treating the contract as at an end. The breach need not be the sole cause of resignation.

3. Where concurrent reasons operate on the employee’s mind, the correct inquiry is whether the repudiatory breach played a part in the resignation. A tribunal must not choose between operative causes merely to identify the predominant one. The Court of Appeal’s approach in [2005] ICR 1 was binding, and the EAT endorsed the formulation in Abbey Cars.

4. The Tribunal’s repeated use of “the effective cause”, together with its self-direction, showed that it had adopted the wrong approach. Its findings did not clearly establish that caring responsibilities were the sole cause and that the Council’s conduct played no part. The decision could therefore not be upheld as plainly and unarguably right.

5. The case was remitted, if practicable to the same Tribunal, to determine whether the repudiatory breaches played a part in the resignation. If they did, the constructive-dismissal claim succeeds; if the sole reason was the need to care for the claimant’s partner, it fails. If compensation arises, the Tribunal may reduce it to reflect any finding that the claimant would in any event have left employment for other reasons.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the constructive-dismissal issue to the Employment Tribunal.

• Employment Tribunal at Glasgow: Dismissed the claim for constructive unfair dismissal in reasons delivered on 25 September 2012.