• Robert Spicer

New Constructive Dismissal Case

Fundamental breach of contract

Case Wright v North Ayrshire Council (2013) Morning Star, November 22, EAT

Facts W was employed by N as a care assistant from 2003 until 2010. During her employment she lodged three grievances. None of these were properly dealt with. She was wrongly accused of theft by her employer. In 2009 W had to nurse her mother, who was seriously ill. In 2010 her partner suffered a stroke. In November 2010 w resigned and complained of constructive dismissal. The ET dismissed her claim. Although N had committed a breach of contract, there were circumstances beyond the contract which might have made W want to leave her work. The breach of contract had not been the effective cause of her resignation. W appealed to the EAT.

Decision 1. The appeal was allowed.

2. The proper approach was to ask whether the employee accepted the employer’s repudiatory breach by treating the contract of employment as at an end.

3. The crucial question was whether the repudiatory breach played a part in the dismissal. Once the tribunal has found that there has been a fundamental breach, all the employee has to do to establish constructive dismissal is to show that it was one of the factors that they relied on.

4. Where other factors are involved in the decision to resign, the tribunal may reduce compensation to reflect the chance that the employee would have left their employment even if the employer had not breached the contract.

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