In order to establish a claim for constructive dismissal, an employee has to show that he or she resigned in response to a fundamental breach of contract by the employer – and must do so promptly, to avoid being regarded as having waived that breach. In Logan v Celyn House Ltd, the Employment Appeal Tribunal considered the situation where an employee is alleging a number of breaches, some with more substance than others. and cites only one when resigning.
The background was that the claimant was a veterinary nurse who raised 11 grievances against her employer alleging, amongst other things, bullying by one of her managers, and a twelfth about failure to pay her sick pay. All of her grievances were rejected by the employer, and in response to the rejection, she resigned stating that the rejection of all her grievances placed her in an “impossible and intolerable situation”. The Employment Tribunal hearing her case found that the alleged bullying was a figment of her imagination but also that the employer had failed to pay her proper sick pay – which was a repudiatory breach of contract. Because the breach of contract relating to sick pay was not the principal reason for resignation the Employment Tribunal rejected the constructive dismissal claim.
The Employment Appeal Tribunal overturned the decision: there had been a repudiatory breach of contract which was one of the reasons for resignation, which, applying Meikle v Nottinghamshire County Council, meant that there was sufficient causal connection between the breach and the resignation, for the resignation to be properly regarded as a constructive dismissal. Having considered the authorities, Judge Shanks summed up the correct approach as follows:
…it is clear to this Tribunal that when the Employment Tribunal asked itself what the principal reason for the resignation was, it asked itself the wrong question. It should have asked itself whether the breach of contract involved in failing to pay the sick pay was a reason for the resignation, not whether it was the principal reason.
Frequently in constructive dismissal cases it can be difficult to isolate a repudiatory breach of contract amidst a great deal of bluff and bluster about who said what to whom and when, and this decision may make it a little less difficult for claimants to prove their cases.