UK – Constructive dismissal: innocuous “last straw”

A schoolteacher, Mr Williams, resigned after a series of events during which he had been suspended for an alleged child protection matter. He also had disciplinary proceedings brought against him for alleged breach of the school’s data protection policy. Mr Williams had a number of complaints about the process and resigned after several months, saying that the last straw was learning that a colleague, who was under investigation for a connected data protection breach, had been prohibited from contacting him.

Mr Williams failed in his claim of constructive unfair dismissal at the employment tribunal. The employment tribunal found that the school’s instruction to the colleague not to contact Mr Williams was reasonable in the circumstances and entirely innocuous. They decided that meant that despite previous conduct by the employer that amounted to a fundamental breach of contract which had not been affirmed, the Claimant had not resigned in response to a fundamental breach of contract.

The EAT decided that was the wrong approach. The judge said that as long as there has been conduct which amounts to a fundamental breach of contract, and the employee does resign at least partly in response to it, constructive dismissal is made out. That is the case even if other, more recent, conduct has also contributed to the decision to resign.

Practical point
Employers should be aware that even reasonable and seemingly innocuous acts on their part have the potential to revive an earlier fundamental breach of contract. If the earlier fundamental breach contributes to the employee’s decision to resign, a constructive dismissal claim may succeed even though the last straw identified by the employee does not in itself contribute to a breach of the implied term of trust and confidence.

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