Williams v Alderman Davies Church in Wales Primary School

An employee may establish constructive dismissal where an unaffirmed fundamental breach by the employer materially contributed to the resignation. A later event which merely triggers resignation need not itself contribute to the breach, provided the earlier breach remained unaffirmed.

For a cumulative breach of the implied term of trust and confidence, conduct said to add to the breach need only contribute something objectively. It need not itself be unreasonable or blameworthy. A practice for reasonable-adjustment purposes requires repetition or persistence, but that feature may be found within the employer’s treatment of the individual claimant. It need not be shown that the approach would be taken in every comparable case.

The claimant, a disabled teacher, resigned after prolonged disciplinary and grievance processes concerning child-protection and data-protection allegations. He alleged constructive unfair dismissal, discriminatory constructive dismissal, and failures to make reasonable adjustments under the Equality Act 2010.

The Employment Tribunal found substantial criticisms of the respondent’s conduct and upheld some discrimination claims. It nevertheless rejected constructive dismissal because the immediate trigger for resignation, refusal to permit contact with a colleague, was found innocuous. It also rejected a reasonable-adjustments complaint concerning continued withholding of a child’s identity, holding that the conduct was not a practice.

The appeal concerned whether those conclusions applied the correct tests and whether findings could be substituted or required remission.

1. Appeal allowed. The Employment Tribunal erred by treating the innocuous character of the latest event as necessarily fatal to constructive dismissal. Under section 95(1)(c) of the Employment Rights Act 1996, constructive dismissal is established where there is a fundamental breach, the employee remains entitled to treat the contract as at an end, and that breach materially contributed to resignation.

2. Where earlier conduct has itself crossed the Malik threshold, has not been affirmed, and materially influenced the resignation, a subsequent event which merely triggers resignation need not add to the breach. The Employment Tribunal had found that the earlier treatment influenced the claimant’s resignation and that prior conduct could found a breach of the implied term. It could not properly have found affirmation on the facts found. A finding of constructive dismissal was therefore substituted.

3. The Tribunal also erred in equating conduct which it regarded as reasonable with conduct incapable of contributing to a cumulative breach. Under Omilaju, conduct may contribute something, however slight, without itself being unreasonable or blameworthy. The EAT did not finally determine the interaction between reasonable and proper cause and that threshold because it was unnecessary to the outcome.

4. No fair reason for dismissal could realistically be established on the Tribunal’s findings. The EAT substituted a finding of unfair dismissal rather than remitting that issue.

5. The Tribunal set the threshold for a provision, criterion or practice too high by requiring proof that the decision-maker would take the same approach in all comparable processes. Repetition or persistence may be demonstrated within the treatment of the individual claimant. That reasonable-adjustments complaint was remitted because further factual findings were required.

6. The issue whether the constructive dismissal was discriminatory was also remitted to the same Tribunal, if available.

• Employment Appeal Tribunal: Allowed the claimant’s appeal from the Cardiff Employment Tribunal. It substituted findings of constructive dismissal and unfair dismissal, and remitted the discriminatory-dismissal and reasonable-adjustments issues.
• Employment Tribunal: Rejected the claims for constructive unfair dismissal and discriminatory constructive dismissal, while allowing some other claims under the Equality Act 2010.