Atkinson v Community Gateway Association

An employee’s own unaccepted repudiatory breach does not prevent him from accepting a later repudiatory breach by the employer and claiming constructive dismissal. While the contract remains in existence, contractual obligations, including mutual trust and confidence, continue unless the innocent party accepts the repudiation. The employee’s prior breach may instead reduce compensation, potentially by 100%, if it is shown that he would fairly have been dismissed. A tribunal should not strike out a constructive dismissal claim on the basis of an absolute bar where the relevant legal principle is disputed and factual issues remain. Whether workplace emails attract Article 8 protection depends on the circumstances, including the employer’s policy and the employee’s reasonable expectation of privacy. Emails obtained without unjustified interference may be used in disciplinary proceedings.

The claimant, a director of a housing association, resigned while disciplinary investigations were continuing and claimed constructive unfair dismissal and detriment for making a protected disclosure. The investigation concerned financial matters, workplace conduct, use of the employer’s email system for sexual communications and assistance given to a personal associate applying for employment.

The Employment Tribunal struck out both claims at the close of the claimant’s evidence. It held that his own repudiatory breaches barred constructive dismissal, that access to his emails did not infringe Article 8, and that the employer was not vicariously liable for detriment caused by employees. The claimant appealed on procedure, constructive dismissal, Article 8 and protected disclosure issues.

1. Appeal allowed. The constructive unfair dismissal and protected disclosure claims were remitted for rehearing by a freshly constituted Employment Tribunal.
2. The Tribunal erred in applying an absolute rule that an employee in repudiatory breach cannot accept the employer’s repudiatory breach. An unaccepted repudiation has no effect on the continuing contract. The employer’s obligations, including the implied obligation of trust and confidence, continued until termination.
3. The employee’s prior breach was not irrelevant. If constructive dismissal were established, the Tribunal would have to consider its effect on compensation. A reduction of 100% could be appropriate if the employee would have been fairly dismissed in any event.
4. The Tribunal therefore had to decide whether the employer’s conduct entitled the claimant to treat the contract as terminated. There was no separate balancing exercise by which the claimant’s misconduct automatically defeated the claim.
5. The Tribunal’s Article 8 conclusion was not erroneous, although its reasoning differed. On the facts, the claimant had no reasonable expectation of privacy in unmarked emails sent through an employer’s system contrary to a policy he had authored. Access during a legitimate investigation was not an unjustified interference, and the emails could be used in disciplinary proceedings.
6. The parties accepted that the protected-disclosure conclusion based on NHS Manchester v Fecitt was legally wrong. That claim also required rehearing. Rehearing before the original Tribunal would be unfair because it had formed strong views about the claimant and his case.

• Employment Tribunal, Manchester: claims for constructive unfair dismissal and protected-disclosure detriment struck out on 18 December 2012.
• Employment Appeal Tribunal: appeal allowed; both claims remitted for rehearing by a newly constituted Tribunal.