Hart v St Mary's School (Colchester) Ltd

A contractual power allowing an employer unilaterally to vary an employee’s contractual working arrangement is unusual and requires clear language. A permissive provision stating that part-time work may be varied to meet timetable requirements did not, in its contractual context, confer such a power.

For constructive dismissal, the employer’s repudiatory breach need not be the sole or predominant reason for resignation. It is sufficient if the breach was causally connected to, and formed part of the reason for, the employee’s resignation.

The claimant was a part-time learning support teacher who had worked three days each week. The school sought to require her to spread her work over five days. She resigned after consultation failed and brought a claim of constructive dismissal.

The Employment Tribunal rejected the claim. It held that the contract allowed the school to vary her contractual hours and that, in any event, she had resigned because of domestic responsibilities or ill-health rather than any contractual breach.

On appeal, the issues were whether the contract conferred a unilateral power of variation and what causal connection between a repudiatory breach and resignation was required.

1. Appeal allowed and remitted. The Employment Judge erred in construing the contract as permitting the school unilaterally to require the claimant to work over five days rather than three.

2. The 2003 agreement replaced earlier contracts, but its construction had to take account of the factual matrix. At that time the agreed scope of the claimant’s part-time work was three days a week. Clause 2.1 did not govern the hours which a part-time teacher was required to work during school session. Its exception for clause 1.4 removed part-time teachers from that mandatory requirement, although the provision concerning work outside school hours could still apply.

3. Clause 1.4 described the part-time fraction and stated that it may be varied depending on timetable requirements. It was permissive and did not state when or by whom a variation could take effect. It contemplated a request for variation by either party, subject to the timetable. It did not use sufficiently clear language to give the employer an unusual unilateral power of variation. The school’s insistence on the change without agreement was therefore a repudiatory breach.

4. The Tribunal also misdirected itself on causation. Once repudiation is established, the question is whether the employee accepted it by resignation. The breach need only play a part in the resignation; sole causation or predominant effect is unnecessary. The Tribunal had not considered whether the imposed variation was part of the cause under either of its alternative readings of the resignation evidence.

5. The finding that there was no repudiatory breach was substituted with a finding that there was one. The remaining question—whether the claimant accepted that breach by resigning and was constructively dismissed—was remitted for rehearing before a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: Allowed the appeal, substituted a finding of repudiatory breach, and remitted the constructive-dismissal issue for rehearing before a differently constituted Employment Tribunal.

• Employment Tribunal: Employment Judge Amin rejected the claimant’s constructive-dismissal claim in a reserved judgment following a hearing on 18 March 2014; written reasons were sent on 20 May 2014.