Hutchison v The Scottish Ministers

An employee who accepts a voluntary exit scheme available only to continuing employees affirms the contract and leaves by mutual agreement. That method of termination is inconsistent with a claim that the employee accepted the employer's repudiatory breach and was constructively dismissed.

The employee's reason or motive for wishing to leave does not determine the legal mechanism by which employment ended. A prior breach, even if assumed for the purpose of a strike-out hearing, does not assist where the employee instead agrees a voluntary severance arrangement.

The claimant, a senior depute procurator fiscal, was absent with work-related stress when the respondent operated a voluntary exit scheme. She applied, accepted a quoted compensation package, agreed an earlier leaving date and left employment on 22 December 2011.

She brought a claim of unfair constructive dismissal. At a pre-hearing review, the Employment Tribunal assumed that the respondent might have committed a fundamental breach, but held that her employment ended by mutual agreement through the voluntary exit scheme. It struck out the claim as having no reasonable prospect of success under Rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. The claimant appealed, contending that her acceptance of favourable exit terms did not prevent constructive dismissal.

1. Appeal refused. The Employment Tribunal made no error of law in striking out the constructive-dismissal claim.
2. For the pre-hearing review it had been assumed that the respondent's conduct could have amounted to a fundamental breach entitling the claimant to resign. That assumption did not decide how the contract in fact ended.
3. The claimant did not terminate the contract in response to the assumed breach. By applying for, accepting and leaving under a voluntary exit scheme which was available only to employees, she affirmed the employment contract and agreed its mutual termination. She could not both enter that arrangement and maintain that she had been constructively dismissed.
4. The claimant had conflated her motive for leaving with the method of termination. Her work-related stress and wish to leave might explain why she sought the scheme, but the legally material question was how she left. The answer was by voluntary, mutually agreed severance.
5. Sandhu v Jan de Rijk Transport [2007] ICR 1137 was materially different. In that case the employee had been told that he was dismissed before negotiating the terms of departure. The claimant here was not dismissed by the respondent and instead agreed to leave through the scheme.

• Employment Appeal Tribunal: appeal refused; the Employment Tribunal's strike-out was upheld.
• Employment Tribunal: at a pre-hearing review, the claim was struck out under Rule 18(7)(b) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 because the employment had ended by mutual agreement.