Wainwright v Cennox [2023] EAT 101

In this case, the Employment Appeal Tribunal (“EAT”) decided that the Employment Tribunal (“ET”) had failed to analyse whether acts of discrimination amounted to fundamental breaches of contract that led to the Claimant’s resignation.

The Claimant was a long-serving employee who was diagnosed with cancer and began a period of sick leave to receive treatment. After returning to work for a brief period, the Claimant commenced another period of sickness absence.

In the Claimant’s absence, and unknown to her at the time, one of the Claimant’s colleagues notified the Respondent that they intended to resign. The colleague was then offered the same role as the Claimant (Head of Installations) on a permanent basis on the assumption there would be enough work for two Heads of Installations. The Claimant only became aware of this through LinkedIn some months later, whilst on sick leave. When she contacted the Respondent, she was inaccurately told that her role would be unaffected. The Respondent also failed to inform the Claimant that the colleague’s new role was permanent.

Following discussions about the Claimant’s return to work, she was provided a new job description and organisation chart, which led the Claimant to believe she had been demoted. She consequently raised a formal grievance, to which the Respondent’s UK Managing Director expressed surprise and disappointment. The Respondent then temporarily removed the Claimant’s access to her work e-mail account after discovering that she had been approached by a customer to potentially recruit her. There was also a delay in progressing the Claimant’s grievance, after which the Claimant resigned and brought various claims in the ET.

The ET dismissed the Claimant’s claims of direct disability discrimination, victimisation, wrongful dismissal and constructive unfair and discriminatory dismissal. It did however find that the Respondent had discriminated against the Claimant because of something arising from her disability, by appointing her colleague to the same rule without her input and by misleading the Claimant that this appointment was temporary. However, the ET concluded that the Claimant’s resignation was not due to these discriminatory acts, rather it was due to dissatisfaction with her job title and status.

The Claimant appealed. The EAT decided that the ET had failed to carry out a structured analysis of considering whether the discriminatory acts amounted to a fundamental breach of contract, as well as whether such breaches materially contributed to the Claimant’s resignation. The EAT emphasised that the breach of contract does not have to be the sole or “effective cause” of an employee’s resignation as long as it “materially contributed” to it.

The case was returned to a fresh ET for reconsideration and the Claimant’s claims for constructive unfair dismissal and discriminatory dismissal were subsequently upheld. Following a remedies judgment, the Claimant was awarded £1.2m in compensation, including an injury to feelings award of £40,000.

This case emphasises that in a constructive dismissal case, the ET should ask whether proven discriminatory actions breached trust and confidence between the employer and employee, before considering whether those breaches materially contributed to the employee’s resignation. It also acts has a reminder to employers to take care in their communications with disabled employees in circumstances where a replacement may be required to manage their workload during their sickness absence.