atkinson_cgaEAT1408
EAT Unfair Dismissal : Constructive Dismissal – The Claimant claimed constructive unfair dismissal and that he had been exposed to detriment for making a protected disclosure. While investigating his conduct the Respondents accessed his emails and discovered that he had been abusing the email system by sending overtly sexual messages to a female friend and had sought to help her obtain a position in the Respondents. He resigned before disciplinary proceedings were completed, complaining that they were being conducted in such a way as to amount to repudiatory breach.
At the close of the Claimant’s case the Respondents made submissions that his claims should be struck out as having no reasonable prospect of success. Those submissions succeeded; the Tribunal decided that 1) the constructive unfair dismissal claim could not succeed as a matter of law because the Claimant was himself in repudiatory breach of contract 2) the Respondents’ accessing of the Claimant’s emails was not in breach of his Article 8 rights and 3) the PID claim could not succeed because the Respondents were not in law vicariously liable for the employee who were said to have acted to the Claimant’s detriment.
On appeal:-
1. It was conceded that the ET’s decision as to vicarious liability was in error, being based on a misapplication of Fecitt (2011 EWCA Civ 1190); and that part of the claim would have to be remitted
2. The ET erred in law in concluding that one party to a contract of employment cannot accept a repudiatory breach of contract by the other if he is himself at that time in repudiatory breach but that repudiation has not been accepted by the other. Doubts expressed in recent English decisions such as Tullett Prebon (2010 EWHC 484) as to whether there was such a principle and the decision of the EAT in McNeill v Aberdeen City Council (UKEATS/0037/08) that there was, had been laid to rest by the decision of the Court of Session which reversed the EAT’s decision. The correct solution in employment law is that an unaccepted repudiation has no effect; if a party himself in repudiatory breach establishes unfair dismissal that breach can be fully taken into account at the remedy stage.
3. Therefore the unfair dismissal claim also had to be remitted for reconsideration
4. The ET had not erred in law in their decision as to Article 8
5. The remission should be to a fresh Tribunal
Jeffrey Burke QC HHJ
[2014] UKEAT 0457 – 12 – 2108
Bailii
England and Wales
Employment
Updated: 10 November 2021; Ref: scu.536286