Constructive dismissal: last straws

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Constructive dismissal: last straws

Published 11 June 2020

The EAT has held that an employee was constructively dismissed although the act that tipped him into resigning was innocuous.

THE FACTS

Mr Williams was a teacher working at a primary school. He was suspended in April 2015 because of, what he was told was, a child protection matter. At that point he was given no further information about the concerns. After the Police and Social Services had decided to take no further action, his suspension was lifted in July 2015 but he was not allowed to return to teaching duties pending an internal disciplinary investigation. In September 2015, Mr Williams took time off work with severe symptoms of stress.

In October 2015, Mr Williams was told that the child protection allegation was that he had manhandled a child. He was not told the identity of the child or who had made the allegation. In November 2015, he raised a grievance about how the matter had been handled. The disciplinary process was put on hold while some (but not all) aspects of the grievance were investigated.

To give his union background information about the situation, Mr Williams had downloaded a large number of documents from the school’s systems. When the Head Teacher, Mrs Matchett, found out about this, he was suspended again, and a second disciplinary investigation into the alleged breach of data protection obligations began. It also came to light that, at some point, a document had been shared between Mr Williams and a fellow teacher, Mrs Sydenham, who was the trade union representative at the school. Mrs Sydenham was also subject to a disciplinary investigation into allegations that she had breached data protection obligations.

Mr Williams’ grievance was not upheld, and the disciplinary process started again. Mr Williams was still not provided with information about the identity of the child or the accuser. He wrote a letter complaining about this and about other aspects of his treatment, asserting that he had lost all faith in his employer treating him properly. Three days later, he resigned. In his letter of resignation, Mr Williams cited a prohibition on contact with Mrs Sydenham as the reason for his resignation, saying that “just when I thought things could not get any worse I have been told by my solicitor that Mrs Matchett has recently refused to give permission to my colleague, Mrs Sydenham, to contact me to discuss the overlap of our two cases. This is gratuitous cruelty and further abuse of power.”

Mr Williams claimed (among other things) that he had been constructively dismissed (the other claims are not covered in this alert).

The employment tribunal was highly critical of the school’s treatment of Mr Williams. However, it dismissed Mr Williams’ constructive dismissal claim. It considered that the “last straw” on which Mr Williams relied was itself innocuous: in light of the investigation into data protection breaches, the prohibition on contact with Mrs Sydenham was reasonable. With reference to existing case law, the employment tribunal said that an innocuous act cannot be the last straw that triggers a constructive dismissal claim.

Mr Williams appealed to the EAT and the EAT upheld the appeal.

Distinguishing this case from existing case law, the EAT held that Mr Williams had not affirmed previous breaches of contract at the point of his resignation. Before the innocuous act, the employer’s actions had constituted a breach of trust and confidence, which had clearly not been affirmed by Mr Williams, and this breach of trust and confidence had materially contributed to his decision to resign. The EAT held that this was sufficient. Mr Williams had therefore been constructively dismissed.

WHAT DOES THIS MEAN FOR EMPLOYERS?

This is not a comfortable decision for employers. It means that in some circumstances, employees can successfully claim that they have been constructively dismissed when the employer’s act which triggers the dismissal is itself reasonable. This adds to the complexities of managing an employee who has raised a grievance which has not been upheld. However, the employee will not be able to rely on an earlier repudiatory breach if they have affirmed any earlier breaches. Unless an employee has expressly said they are working under protest, it is often very difficult to assess whether or not a breach has been affirmed. Previous case law has said that an employee should not be penalised for “soldiering on” at work in the face of an employer’s breaches, so a very careful analysis of the factual matrix will be needed in each case.

Williams v Governing Body of Alderman Davies Church in Wales Primary School UKEAT/0108/19

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Joanne Bell

Joanne Bell

Manchester

+44 (0) 161 934 3179

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

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