Constructive dismissal and recent conduct

Williams v The Governing Body of Alderman Davies Church in Wales Primary School [2020] UKEAT/0108/19/LA

The Employment Appeal Tribunal ("EAT") has held that where there is conduct by an employer that amounts to a fundamental breach of contract, an employee can succeed in a constructive dismissal claim even where more recent conduct, which in itself is not a breach of contract, "tips" the employee into resigning.

Mr Williams had been suspended and subject to disciplinary proceedings for alleged misconduct. He had several complaints about the disciplinary proceedings, but ultimately resigned because another employee had been prevented from contacting him during the process, something Mr Williams alleged was the "last straw" triggering his constructive dismissal.

Whilst the tribunal found that the employer’s prevention of contact was entirely innocuous and reasonable in the circumstances, the EAT held that a tribunal cannot reject a constructive dismissal claim simply by looking at the alleged "last straw" and concluding that it was not of itself a breach of contract. It must also consider whether there is an earlier fundamental breach of contract that contributed to the resignation. In this case, the employer's prior conduct did amount to a fundamental breach.

The EAT also noted that the employee must not have affirmed the contract of employment following the earlier fundamental breach, and the eventual resignation must be at least partially in response to such conduct in order for a constructive dismissal claim to succeed. Mr Williams had not affirmed his contract and his claim was upheld.

This case emphasises that an employee may succeed in a constructive dismissal claim even if the event that finally triggers their resignation is not a breach of contract at all. It underlines the legal and factual complexity of constructive dismissal claims: much will depend on the evidence of the claimant about why he or she finally decided to resign.