Ishaq v Royal Mail Group Ltd

For constructive dismissal, a repudiatory breach need not be the employee’s sole or predominant reason for resigning. It is sufficient that the employee resigned in response to it, at least in part. However, there must be a genuine causal connection between the breach and the resignation.

An employer may show that, despite a resignation letter referring to a fundamental breach, the breach was not a genuine reason for resignation. Where the tribunal permissibly finds that resignation was wholly to avoid disciplinary action, and not in response to the breach, constructive dismissal is not established under section 95 of the Employment Rights Act 1996.

The Claimant, a postman with a disability affecting his ability to walk, resigned after his employer had failed to roster him consistently on a suitable delivery route. The Employment Tribunal found that rostering him on an unsuitable route from 6 January 2014 was a continuing fundamental breach of contract. It upheld his reasonable-adjustments claim but dismissed his constructive unfair dismissal claim.

On the day of resignation, the Claimant was due to view CCTV footage concerning an incident for which the employer considered disciplinary action. The Tribunal found that he resigned to avoid that action, rather than in response to the fundamental breach. The Claimant appealed, contending that the Tribunal had wrongly treated the possible reasons for resignation as mutually exclusive.

1. Appeal dismissed. The Employment Tribunal correctly directed itself that an employee need only resign in response, at least in part, to a fundamental breach. It did not wrongly require the breach to be the sole or predominant cause of resignation.

2. There must nevertheless be a genuine causal connection between the employer’s repudiatory breach and the resignation. A resignation letter that identifies a fundamental breach is not conclusive. The employer may establish that the stated breach was not a genuine reason for resignation and that the employee resigned for an unconnected reason.

3. Read fairly and in the context of the case advanced by the employer, the Tribunal had not set up a false dichotomy between the fundamental breach and the impending disciplinary proceedings. It found as fact that the true reason for resignation was to avoid disciplinary action, and that the breach concerning unsuitable duties played no part in the resignation.

4. The Tribunal gave sufficient reasons for that finding. It was entitled to regard the timing of the resignation, on the day the Claimant was due to view CCTV footage, as strongly inconsistent with resignation in response to the continuing breach. It was unnecessary to make an express finding that the Claimant had acted dishonestly about his reasons.

5. The challenge to the Tribunal’s alternative conclusion about potential summary dismissal therefore fell away.

• Employment Appeal Tribunal: appeal dismissed; the Sheffield Employment Tribunal’s dismissal of the constructive unfair dismissal claim was upheld.
• Employment Tribunal: the Sheffield Employment Tribunal dismissed the constructive unfair dismissal claim in a judgment sent on 3 November 2015. It upheld a reasonable-adjustments claim, for which it awarded £10,000; that decision was not appealed.