Western Excavating (ECC) Ltd v Sharp: CA 1978

To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events which justified his leaving, and that he left his employment with the defendant in response to that breach and not for some other unconnected reason.
Lord Denning MR said: ‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once. Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract.’
A resignation by an employee is a repudiation of the contract of employment, a fundamental breach. It should be accepted by the employer within a reasonable time.

Lord Denning MR
[1978] QB 761, [1978] ICR 221, [1977] EWCA Civ 2, [1978] 1 All ER 713, [1978] IRLR 27, [1978] 13 ITR 132, [1978] 2 WLR 344
England and Wales
OverruledGilbert v Goldstone Ltd EAT 1976
Unreasonable conduct by an employer was sufficient to amount to constructive dismissal, regardless of whether it involved a breach of contract by the employer. . .

Cited by:
CitedHorkulak v Cantor Fitzgerald International QBD 31-Jul-2003
The claimant sought damages for constructive dismissal. He said that verbal abuse he had suffered from the manager damaged his health and destroyed the relationship of trust and confidence.
Held: The manager was dictatorial and saw it as his . .
CitedKent County Council v Green CA 23-Jan-2004
The applicant had been a head teacher. She claimed unfair dismissal. The respondents claimed that they were not her employers. The school was a community school.
Held: The governors should have been the correct respondents. They held the . .
CitedEastwood and another v Magnox Electric plc; McCabe v Cornwall County Council and others HL 15-Jul-2004
The first claimants were long standing employees. Mr Eastwood fell out with his manager, who disciplined him using false statements. When Williams refused to provide a false statement he too was disciplined. Each claimed damages for the injury to . .
CitedNottinghamshire County Council v Meikle CA 8-Jul-2004
The claimant was a teacher who had come to suffer a sight disability. She complained that her employers had failed to make reasonable accomodation for her disability, and subsequently she resigned claiming constructive dismissal and damages for . .
CitedLondon Borough of Waltham Forest v Omilaju CA 11-Nov-2004
Final Straw Act – Non-Trivial
The claimant had been involved in protracted disputes with the respondent. The respondent appealed a finding of constructive dismissal and victimisation. He had attended a tribunal hearing and the employer had refused to pay his salary whilst he was . .
CitedKwik-Fit (GB) Ltd v Lineham EAT 5-Feb-1992
The applicant claimed unfair dismissal. The employer replied that the employee had resigned.
Held: The employer’s appeal was dismissed. The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able . .
CitedRajani v S Dory Ltd EAT 29-Jun-1994
. .
CitedCerinus v Bell College of Technology EAT 28-Sep-2001
The employee appealed against the dismissal of her claim for unfair dismissal. Following a re-organisation, she found that there was less and less work of the sort she was employed to undertake. She requested voluntary redundancy and was refused . .
AppliedRasool and Others v Hepworth Pipe Co Ltd EAT 1980
240 employees had attended a mass meeting. The employers wrote to them saying that they had broken their contract by attending an unauthorised meeting during working hours and they had automatically terminated their employment. They claimed unfair . .
CitedAlcan Extrusions v Yates and others EAT 5-Feb-1996
The employers appealed against a decision that it had constructively dismissed the respondents by substantially changing their employment terms.
Held: The tribunal approved the chairman’s statement that ‘the applicants’ former contracts of . .
CitedAbbey National Plc v Fairbrother EAT 12-Jan-2007
EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found . .
CitedHamilton v Tandberg Televison Ltd EAT 12-Dec-2002
The applicant claimed unfair constructive dismissal.
Held: The appeal failed. McMullen QC J said: ‘It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation . .
CitedWoods v WM Car Services (Peterborough) Ltd EAT 1981
Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, but in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the . .
CitedClaridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
CitedGAP Personnel Franchises Ltd v Robinson EAT 16-Oct-2007
EAT Contract of employment – Damages for breach of contract
Unlawful deduction from wages
Whether express term of contract as to mileage expenses was consensually varied by the Claimant’s . .
CitedCourtaulds Northern Textiles Ltd v Andrew EAT 1979
There is implied into a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust . .
CitedUnited Bank Ltd v Akhtar EAT 12-Oct-1989
Appeal against finding of unfair dismissal.
Held: An express mobility clause can be subject to an implied restriction as to reasonable notice. . .
CitedMuschett v Parkwood Healthcare EAT 16-Mar-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal did not approach the question of constructive unfair dismissal in a last straw case by reference to the steps in Omilaju. To take an . .
CitedBournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
CitedBuckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .
CitedWatson v University of Strathclyde EAT 1-Feb-2011
EAT UNFAIR DISMISSAL – Constructive dismissal
Apparent bias. Whether Employment Tribunal had erred in failing to find that there was apparent bias where a member of the panel (the University Secretary) . .
CitedQuinn v Weir Systems Ltd EAT 27-Apr-2001
Appeal at the instigation of the employee against a finding of the Employment Tribunal to the effect that he had resigned from his employment with the respondents in circumstances which did not amount to constructive dismissal. . .
CitedMeikle v Nottinghamshire County Council EAT 19-Aug-2003
EAT Disability Discrimination – Less favourable treatment. The appellant brought proceedings against the Respondents alleging that they had failed to make adjustments to her workplace and conditions so as to . .
CitedMeikle v Nottingham City Council EAT 14-Apr-1994
The appellant challenged dismissal of her claim for indirect racial discrimination based on two grounds. First, that the Tribunal’s decision was perverse; in other words that it was a decision which, on the evidence before it, no reasonable tribunal . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.185213