Breach by employer must be reason employee resigns in constructive dismissal

An employee must show that a breach by their employer of the implied term of mutual trust and confidence between them actually caused the employee to resign, or they will not succeed in a constructive dismissal claim.

An employer collected a pool car from an employee who was signed off work, as it was needed in the business. On his return the employee resigned, claiming constructive unfair dismissal - ie that:

• There had been a series of breaches of the term of mutual trust and confidence between him and his employer.
• These were sufficiently serious for him to treat himself as having been dismissed, and resign.
• That he had done so in response to the breaches.

They included taking his car back and removing his telephone allowance.

The employment tribunal said these were both breaches entitling him to resign and treat himself as constructively dismissed. Although other actions of the employer were also complained if, it found these were not breaches justifying his resignation.

On appeal, the employment appeal tribunal said that non-payment of a telephone allowance could be a breach amounting to constructive dismissal, but it seemed to be of minor importance to the employee in this case. It also said that the tribunal seemed to have decided the taking of the pool car was a breach justifying his resignation for different reasons from those alleged by the employee himself. Given the confusion, it had to consider whether the employer had a justifiable reason for recovering the car. It found that it did. Given the confusion, it remitted the case to a fresh tribunal.

Importantly, however, the case clarified that there must be a causal connection between the breaches relied upon, and the resignation. If there is not, there is no constructive dismissal.

Recommendation

When an employee claims constructive dismissal, review whether the breaches he is basing them on were part of the reason he resigned.