UK: resignation following innocuous 'last straw' could still found constructive dismissal claim

An employee can resign and claim constructive dismissal where the employer fundamentally breaches the employment contract, for example by breaching the duty of trust and confidence;  this can be a one-off repudiatory breach or a series of breaches over time which cumulatively amount to a breach of trust and confidence.

The EAT has ruled that an employee who resigns because of an entirely innocuous act of the employer may still succeed in claiming constructive dismissal, provided the resignation was also in part a response to an earlier fundamental breach of contract which the employee has not affirmed.  It is only if the earlier conduct did not amount to a fundamental breach by itself, or the employee affirmed the contract after the earlier conduct, that the employee will need to show that they resigned in response to a 'last straw' which is not entirely innocuous and which revives the earlier breach.

In this case, the 'last straw' prompting the claimant's resignation was his discovery that the employer had issued what the tribunal found to be an entirely reasonable instruction to a colleague not to contact him when both were alleged to have carried out connected breaches of the school's data protection policy.  The EAT ruled that the tribunal had erred in failing to consider whether there was an earlier fundamental breach by the employer which had contributed to the decision to resign and had not been affirmed.

Employers should be aware that, if they have committed a fundamental breach of contract which the employee has not affirmed, they could still face a successful constructive dismissal claim even if the final trigger for the employee's resignation is an entirely reasonable act.  (Williams v Governing Body of Alderman Davies Church in Wales Primary School)