Lochuack v London Borough of Sutton

For constructive dismissal, the employer's repudiatory breach must be assessed objectively. However, whether the employee resigned in response to that breach is a question of actual causation, assessed from the evidence of the employee's reasons.

A repudiatory breach need only be part of the reason for resignation. The employee need not show that it was the sole, main or predominant reason. A tribunal must therefore make clear whether it has rejected the employee's asserted reason altogether or has incorrectly selected another reason as decisive.

Conduct should be assessed in its context, whether as a single incident or cumulatively. Earlier breaches may remain relevant where later conduct revives their cumulative effect.

The Claimant resigned after a series of incidents in which her line manager was found to have spoken to or criticised her publicly in ways capable, depending on context, of being demeaning and humiliating. The Employment Tribunal held that she had not been constructively dismissed. It found that she had probably resigned to undertake better-paid locum work and treated her account of several incidents and their effect as exaggerated.

On appeal, the Claimant contended that the Tribunal had wrongly looked for a single reason for resignation and had failed to decide whether the employer's conduct was repudiatory, individually or cumulatively. The Respondent submitted that the Tribunal had simply rejected the Claimant's evidence that the conduct formed any part of her actual reason for leaving.

The central issue was whether the Tribunal had applied the correct test for causation in constructive dismissal and given adequate reasons for its conclusion.

1. Appeal allowed and remitted. The Tribunal's decision could not stand because its reasoning left it unclear whether it had applied the correct causation test. Its use of “the reason” and “more probably because” could indicate that it had selected the principal reason for resignation rather than deciding whether repudiatory conduct formed any part of the Claimant's actual reasons.

2. A constructive dismissal requires an objectively established repudiatory breach of contract. Where the alleged term is mutual trust and confidence, the question is whether, without reasonable or proper cause, the employer acted in a way calculated or likely to destroy or seriously damage that relationship. Any breach of that implied term is repudiatory. Public belittling may meet that standard, but the Tribunal must evaluate the established conduct in its particular context.

3. Once a repudiatory breach is established, the employee must actually elect to accept it by resigning in response to it. This inquiry is subjective in the sense that it concerns the employee's actual reason or reasons, proved by evidence. It is not answered by asking whether a reasonable employee could have resigned in those circumstances. Objective facts may assist in testing the credibility of the asserted reason, but cannot substitute a reason the employee did not have.

4. The breach need only be part of the reason for leaving. Concurrent reasons, including the prospect of better-paid work, do not prevent constructive dismissal if acceptance of the repudiatory breach was also an operative reason. The Tribunal had not clearly found that the Claimant's asserted reason had no truth at all.

5. The expression “last straw” was not determinative. The proper question is whether the incidents found, singly or cumulatively and in context, amounted to a repudiatory breach. An earlier breach not accepted by resignation is not waived merely because the employee continues working. Later conduct may revive the cumulative effect of earlier conduct.

6. The matter was remitted to the same Tribunal, with further submissions but no further evidence. It was to decide whether the conduct was repudiatory and whether it formed part of the Claimant's actual reason for resignation. The Respondent was ordered to repay the Claimant's appeal fees of £1,600 under Rule 34A(2A) of the Employment Appeal Tribunal Rules 1994.

• Employment Appeal Tribunal: allowed the Claimant's appeal and remitted the case to the same Employment Tribunal for determination after further submissions.
• Employment Tribunal, London (South): on 30 September 2013, held that the Claimant had not been dismissed and therefore had no unfair-dismissal claim.