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Constructive unfair dismissal can be established even if the main reason for the employee’s resignation is not a fundamental breach of contract

David McRae
6th Sep 2012

In recent weeks, The Employment Appeal Tribunal (EAT) has found that to succeed in a claim of constructive unfair dismissal the principal reason for the resignation does not necessarily need to be the employer’s fundamental breach of the employment contract.

In this case the employee resigned when her grievance, which raised several issues including alleged bullying and a failure to pay contractual sick pay, was not upheld. The employment tribunal found the alleged bullying did not amount to a fundamental breach of contract but the non-payment of sick pay did. It then found that, given the chief reason for the resignation was the alleged bullying, there had been no constructive unfair dismissal.

 

However, the EAT said that this approach was incorrect. Instead, once it had been established that a fundamental breach of contract had taken place, the question that should have been asked was whether this formed at least part of the reasoning for the employee’s resignation.

 

The full case can be found here (Case name: Logan v Celyn House Ltd UKEAT/0069/12/JOJ).

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