Constructive Dismissal: Can The Trigger Be Something ‘Innocuous’?

One of the biggest decisions an employee may have to make is whether or not to resign in response to something their employer has or has not done.

Where an employer has behaved badly, perhaps by marginalising an employee or refusing to take issues he or she has raised seriously, the employee may be able to treat the employment contract as at an end. Similarly, if an employer blatantly breaches the employment contract by withdrawing a  benefit or forcing the employee to work from a new office much further away. An employee who resigns in those types of situations would usually look to bring a claim for unfair constructive dismissal and win compensation for the loss of their job.

There are three essential elements that need to be proved in a constructive dismissal case:

1. A fundamental breach of contract by the employer;
2. The employee had not accepted that breach (by simply carrying on working without raising a complaint, for example); and
3. The employee resigned at least partly because of the breach.

Some constructive dismissals stem from a one-off act by the employer. However, others are the result of a course of conduct by the employer that the employee finally decides is too much. The decision to resign will be triggered by some event – sometimes referred to as ‘the final straw’. A question recently considered by the Employment Appeal Tribunal (EAT) was: if that final straw or trigger is innocent or harmless, will that scupper a constructive dismissal claim?

Not necessarily, said the EAT in Williams v The Governing Body of Alderman Davies Church in Wales Primary School.

 The case was about a teacher. He had been suspended because of a child protection matter, however he wasn’t told any more than that at the time. Neither the police nor social services took further action against him. Three months into his suspension it was lifted and the school proceeded with its disciplinary investigation.

Six months after the suspension was imposed, the teacher (who had by then gone off work with stress) was told that the allegation was that he had manhandled a child. He was not given the name of the child, or of the person who had made the allegation. He brought a grievance, but that was not upheld.

The school subsequently discovered that while he had been suspended, the teacher had downloaded documents from the school’s system. He had also shared a document with a colleague who was the trade union representative. The school suspended the teacher again to investigate alleged data protection breaches. The union rep was also investigated.

After again having his request for more information about the ‘manhandling’ allegation refused, the teacher wrote to complain about the way he had been treated. He asserted that he had lost faith in his employer treating him properly. Around that time, his solicitor told him that the school had instructed the union rep not to contact him because of the overlap of their two cases. In his resignation letter that followed, the teacher described that as ‘gratuitous cruelty and further abuse of power’.

He brought a number of claims, including for constructive dismissal.

The tribunal’s decision

No constructive dismissal, said the tribunal. Although the school had not handled the suspension and grievance process well, the teacher had resigned because he discovered that the trade union rep had been forbidden from contacting him. It was reasonable for the school to have put that measure in place, given that both the teacher and union rep were involved in data protection investigations and there were potential connections.  The school’s action was innocuous and did not contribute to a breach of the implied term of trust and confidence. The teacher’s resignation was not in response to a breach of the implied term.

The EAT’s decision

The teacher had been constructively dismissed and, as the school had not shown a fair reason, dismissal was also unfair.

In a ‘course of conduct’ case, a trigger for resignation does not always have to contribute to a breach of the implied term of trust and confidence. That means the trigger can be something innocuous, but only where (as in this case):

• there had already been a fundamental breach of contract by the employee;
• the employee had not affirmed that breach; and
• that breach materially contributed to the employee’s decision to resign.

If there had not been a prior fundamental breach, or if there had been such a breach and the employee had affirmed it, the trigger would need to have contributed something to the breach. It could not be innocuous.

For employers

This may seem like a rather technical issue, and one for lawyers to argue at tribunal. However, it does have day-to-day significance for employers.

The main point to bear in mind is that conduct by the employer that amounts to a breach of contract has the potential to lead to a constructive dismissal claim, even if the thing that tips the employee into resigning is ‘something and nothing’.

Provided the employee had not affirmed that earlier breach, and it at least partially influenced their decision to resign, they could feel fairly confident about winning their constructive dismissal claim. That of course hinges on showing that:  (a) the contract had been breached in the first place; (b) the breach had not been affirmed; and (c) resignation was in response to that breach. There are various arguments that an employer may be able to put forward to defeat those.

I think one major lesson to take from this case is: the sooner you can address events or conduct that may later be argued to have been a breach of contract, the better. The last thing any employer should have hanging over them is an event or a course of conduct that could at any point spark a resignation. Avoiding those types of contract-breaching situations arising in the first place is obviously ideal, but is not always realistic to achieve. The next best thing, then, is to try to tackle issues and remedy problems as they arise. Key to all of this is good communication with employees, and a well implemented set of workplace rules and procedures.