Clements v Lloyds Banking plc

For constructive dismissal, the employee must resign in response to the employer’s repudiatory breach. The breach need only be an effective cause and need not be the sole or principal cause.

Where several matters form a cumulative breach, the tribunal must assess in context whether a particular discriminatory act materially contributed to the resignation. It may find a contractual breach while concluding that discrimination did not cause the dismissal. That conclusion is ordinarily one of fact.

A tribunal may accept part of a witness’s evidence and reject another part. A finding that a witness was untruthful on one matter does not require wholesale rejection of that witness’s evidence.

Mr Clements, a senior employee in his fifties, brought claims against Lloyds Banking plc and others. An Employment Tribunal found that remarks by his manager that he was not 25 anymore constituted direct age discrimination. It also found that the employer’s cumulative treatment amounted to a repudiatory breach of the implied term of mutual trust and confidence and that Mr Clements had been constructively dismissed.

The Tribunal concluded, however, that the discriminatory remarks were not a material contributing element of the treatment which caused his resignation. It also rejected the wider allegation that the attempt to move him from his role was motivated by age. The appeal challenged the Tribunal’s treatment of witness evidence and its conclusion that the constructive dismissal was not discriminatory.

The appeal was dismissed.

1. Witness evidence. A fact-finding tribunal may accept all, reject all, or accept part of a witness’s evidence. A finding that a witness was untruthful on one issue raises a possibility that other evidence may also be unreliable, but does not require its rejection. The Employment Tribunal had examined the evidence critically and conscientiously. Its factual conclusions were open to it and could not be reassessed on appeal absent perversity or material misapprehension of fact.
2. Constructive dismissal and causation. Under [1978] QB 761, ordinary contractual principles apply to constructive dismissal. The employee must accept the repudiation and resign in response to the conduct constituting the breach, but the breach need only be an effective cause and need not be the sole cause: Meikle v Nottinghamshire County Council, [2005] ICR 1.
3. Cumulative treatment. The question was not whether there had been a repudiatory breach, which the Tribunal had found, but whether the age discrimination caused the dismissal in a real and material sense. The Tribunal was entitled to distinguish between the overall manner in which the employee was treated, which formed part of the contractual breach, and the specific age-related remarks, which it regarded as trivial or immaterial to the resignation.
4. The assessment had to be made in context. The Tribunal was entitled to conclude that the employee resigned because of the employer’s attempt to remove him from his role and the later appointment of another person, rather than because of the discriminatory remarks. That was a finding of fact, and no error of law or perversity had been established.

• Employment Tribunal, London Central: By reasons delivered on 28 March 2013, upheld claims of age discrimination and constructive dismissal, but rejected the claim that the dismissal was caused to any material extent by discrimination.
• Employment Appeal Tribunal: Dismissed the appeal.