Part of the breach

In order to succeed in a constructive dismissal case, claimants have to show that they resigned in response to a fundamental breach of contract by their employer. In Wright v North Ayrshire Council, the Employment Appeal Tribunal (EAT) said that the breach did not have to be the main reason for the employee’s resignation, it just had to have played “a part” in their decision to resign.

Basic facts

Ms Wright worked as a care home assistant for about seven years from December 2003 until November 2010. During that time she brought three grievances, none of which were dealt with properly. In addition she was (wrongly) accused of theft by management.

In 2009 she faced some very difficult personal circumstances when she had to nurse her mother who was very ill. Shortly after her mother died in January 2010, her partner had a stroke which left him with left-sided weakness and cognitive impairment. She tried to reorganise her working patterns in order to care for him, but without success.

She resigned in November 2010 and claimed constructive dismissal.

Tribunal decision

The tribunal agreed with Ms Wright that her employer had committed a breach of contract, which was fundamental enough to indicate that the home abandoned and refused to perform its side of the contract (known as a repudiatory breach).

However, it found that there were also circumstances “beyond the contract” which might have made Ms Wright want to leave her work, including the pressure of continuing to care for her partner whilst trying to fit in shift work.

As the employer’s repudiatory breach of her contract was not the “effective cause” of her resignation, her claim of constructive dismissal could not succeed.

EAT decision

The EAT upheld her appeal on the basis that the tribunal had committed an error of law by “adopting the approach of looking for the effective cause [of her resignation] in the sense of the predominant, principal, major or main cause”, instead of just “a” cause.

The proper approach, set out in the decision of the Court of Appeal in Nottingham County Council v Meikle (weekly LELR 93) was to ask whether the employee accepted the repudiation by treating the contract of employment as at an end, rather than asking questions about their motives.

Based on that decision, the judge in another case - Abbey Cars (West Horndon) Ltd v Ford - developed the principle further, holding that 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, therefore, all the employee has to do to establish they have been constructively dismissed is to show that it was one of the factors (among others) that they relied on. “Where there is more than one reason why an employee leaves a job the correct approach is to examine whether any of them is a response to the breach, not to see which amongst them is the effective cause”, concluded the EAT.

The EAT therefore remitted the case back to the same tribunal to decide in accordance with the law whether the employer's repudiatory breaches played a part in Ms Wright’s resignation from her job.