A Wainwright v Cennox PLC

Where an Employment Tribunal has found discrimination contrary to section 15 of the Equality Act 2010, it must analyse whether the discriminatory acts were repudiatory breaches of the implied term of mutual trust and confidence. It must then decide whether the employee affirmed the contract and whether the breaches materially contributed to the resignation.

An employee need resign in response, at least in part, to a fundamental breach. The breach need not be the effective or sole cause. Other non-discriminatory objections do not by themselves prevent acceptance of a repudiatory breach. Adequate reasons are required where contemporaneous evidence identifies discriminatory conduct as a reason for resignation.

The appellant, a long-serving employee who had cancer, resigned after her employer had appointed a colleague permanently to a role affecting her own position and had given misleading reassurances about that appointment. The Employment Tribunal found two complaints under section 15 of the Equality Act 2010 well founded, but dismissed claims for constructive unfair dismissal, discriminatory dismissal and wrongful dismissal.

The Tribunal held that the appellant resigned solely because of her erroneous perception that she had been demoted and could not obtain a director-level title. The appellant appealed the dismissals of the constructive and discriminatory dismissal claims, contending that the Tribunal had failed to analyse the contractual effect and causal contribution of the discriminatory conduct.

1. Appeal allowed. The Employment Tribunal gave inadequate reasons for finding that the established discriminatory acts neither amounted to repudiatory breaches nor formed any part of the appellant’s reasons for resigning. Her resignation letter and witness evidence expressly relied on having been misled about the permanent appointment. The Tribunal could reject that evidence, but had to explain why.

2. The Tribunal also misapplied the law by treating its finding of one reason for resignation as necessarily excluding all other factors. It should have considered whether the discriminatory acts, separately or cumulatively, were potentially repudiatory breaches of the implied term of mutual trust and confidence; whether the contract was affirmed; and whether those breaches materially influenced the resignation.

3. For constructive dismissal, the employee must resign in response, at least in part, to the employer’s fundamental breach. The breach need not be the effective cause. A last straw must add something, but need not itself be discriminatory or unreasonable. The fact that the employee also objects to conduct which is not discriminatory does not vitiate acceptance of repudiation.

4. A positive act of misleading an employee may, depending on the facts, breach the implied term of mutual trust and confidence. The Tribunal should therefore have analysed the employer’s misleading statements on that basis.

5. The claims for constructive unfair dismissal, discriminatory dismissal and wrongful dismissal were remitted to a differently constituted Employment Tribunal. The original Tribunal’s preserved factual findings and its conclusions on direct discrimination, victimisation and the specified section 15 claims remained unaffected.

• Employment Appeal Tribunal: Allowed the appeal and remitted the constructive unfair dismissal, discriminatory dismissal and wrongful dismissal claims to a differently constituted Employment Tribunal: [2023] EAT 101.
• Employment Tribunal, East London: Decision sent to the parties on 10 May 2021. It dismissed the dismissal claims while upholding specified claims under section 15 of the Equality Act 2010.