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Constructive Dismissal

View profile for Chris Dobbs
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Atkinson v Community Gateway Association

The Employment Appeal Tribunal (“EAT”) has held an employee is not prevented from claiming constructive dismissal even if he has breached his contract of employment. An employee who might be dismissed for gross misconduct can jump before he is pushed. However, the misconduct will be relevant to remedy.

The Claimant resigned from his post as Director of Resources while a disciplinary investigation was pending against him. The investigation had been instigated in relation to his responsibility for a substantial overspend, but was later expanded to include misconduct in sending e-mails containing sexual content from the association’s e-mail system. Following his resignation the Claimant brought claims of, among other things, unfair constructive dismissal. A tribunal struck out this claim. It considered that, since the Claimant was himself in fundamental breach of contract at the time of the association’s alleged breach, he could not claim constructive dismissal. He appealed to the EAT.

The EAT considered that the obligation of trust and confidence, which lies upon each party to a contract of employment, is not suspended or put in abeyance because one party has broken that obligation. Thus, if one party commits a fundamental breach and the other does not accept it, whether through ignorance of the breach or otherwise, the contract continues. The EAT noted that in the context of an unfair dismissal claim the employee’s breach would be relevant to compensation and might lead to a reduction of 100% if the employer can show that the employee’s breach would have led to a fair dismissal.

In Practice

Employment Partner Kate Fretten says, “This case is a warning to employers that, just because an employee has breached their contract of employment already, it does not mean the employee cannot go on and bring a claim for constructive unfair dismissal. Employers should make sure they act reasonably in all circumstances, even after a fundamental breach of the contract by an employee.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.