11 October 2013 #Employment
The Employment Appeal Tribunal in the case of Wright v North Ayrshire Council has provided some clarity on the correct test for determining constructive dismissal claims, and the extent to which an employer’s contractual breach should contribute to a resignation.
The Claimant was employed as a Care Assistant at the Council from December 2003 until she resigned in November 2010. She subsequently brought a claim for constructive unfair dismissal. On considering the evidence, the Tribunal accepted that there had been more than one breach going to the root of the contract; the Council had not properly answered three grievances raised by the Claimant, and there had been an allegation of theft against the Claimant which had turned out to be entirely misplaced.
The Tribunal also found that the breaches by the Council had been sufficiently serious to constitute a fundamental and repudiatory breach. However, the Tribunal considered that there were other contributing factors which were “the effective cause” of her resignation. The Claimant was experiencing very difficult personal circumstances; her mother had recently died, and her partner had suffered a stroke. There was the suggestion that it might have been more desirable for the Claimant to leave work to care for her partner. The Tribunal dismissed the Claim on the basis that the Claimant’s personal circumstances were “the effective cause” of her resignation.
On appeal, the EAT concluded that the Tribunal had erred in law when addressing the issue of the effective cause of resignation by looking for the predominant, principal, major or main cause. Reference was made to the Court of Appeal authority Nottingham County Council v Meikle 2005 ICR 1, in which Lord Justice Keene suggested that when looking for the effective cause of a resignation, “there are dangers in getting too far into questions about the employee’s motives.” The EAT also cited the comments of Elias J in Abbey Cars (West Horndon) Ltd v Ford EAT 0472/07, in which he observed that the crucial question to be addressed was whether the repudiatory breach played a part in the dismissal. He then went on to state that an employee could claim that he or she had been constructively dismissed where the repudiatory breach was one of the factors relied upon, even if there was “a whole host of other reasons.”
In remitting Mrs Wright’s case back to the same Tribunal for further consideration, the EAT held that the Tribunal had incorrectly appeared to seek ‘the’ cause rather than ‘a’ cause. The EAT directed that the Tribunal should now consider whether the Council’s actions played a part in her resignation. If the Tribunal concludes they did not, then her claim would fail, but if it decides the opposite, the claim would succeed.
Following on from this case, it now seems clear that it is sufficient that the repudiatory breach relied upon in claims of constructive dismissal need only be an effective cause, rather than the most important cause (although it must still of course be sufficiently serious to amount to a fundamental breach). This perhaps raises the questions as to whether the door has been opened to employees who have resigned claiming to have been constructively dismissed, but who had previously secured alternative employment prior to tendering their resignation. While historically it has been argued that in such cases the employer’s actions were not the effective cause of resignation, but rather it was the act of securing alternative employment, there is perhaps more scope to argue that the employer’s conduct was an effective cause rather than the principal effective cause, and that the act of securing alternative employment was simply a natural consequence of the breach. It is worth noting however that when the issue of a compensatory award is assessed, the Tribunal will need to take into account the role played by the breach, and any award already reduced by new earnings may be further reduced.
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