EAT Unfair Dismissal : Constructive Dismissal – Contributory fault – The Employment Judge found that the employer/Appellant had acted in repudiatory breach of contract in the way they had dealt with a disciplinary hearing which resulted in the Claimant’s dismissal. The Claimant had appealed against the dismissal and made it clear in the course of the appeal hearing that he wanted his job back. His appeal succeeded and the Appellant said he was reinstated but he resigned claiming constructive unfair dismissal. The EJ rejected the Appellant’s affirmation defence.
The EAT upheld the appeal on the grounds:
(1) that the EJ had not considered whether the Claimant had resigned ‘in response to’ the breach of contract;
(2) that the EJ had wrongly concluded that in the circumstances the Claimant had not affirmed the contract of employment in relation to the breach on the basis of authorities which were not relevant;
(3) that the EJ had wrongly left out various aspects of the Claimant’s conduct in considering contributory fault having found that they were part of the s98(1) ERA reason for the dismissal (albeit constructive).
Although the merits indicated very strongly that the Claimant’s claim would fail, since the EJ had not addressed the reason for the resignation the EAT could not exclude the possibility that the Claimant had resigned (and been entitled to resign) in response to something the Appellant had done after the hearing of the appeal and the case therefore had to be remitted for re-hearing before a fresh ET.
Shanks HHJ
[2014] UKEAT 0489 – 13 – 2705
Bailii
England and Wales
Employment
Updated: 05 December 2021; Ref: scu.527197