In the case of Williams v Governing Body of Alderman Davies Church in Wales Primary School, the EAT held that an event which itself is entirely innocuous but, which ‘tips’ an employee into resigning after a prior fundamental breach by their employer, can still lead to a successful constructive dismissal claim.
In April 2015, Mr Williams was suspended from his job as a teacher at the Alderman Davies Church in Wales Primary School. He was informed this was because of a ‘child protection matter’, but was given no further details. Mr Williams was informed only in October 2015, that the allegations related to him manhandling a child. However, he was still given no further details.
In early 2016, the school discovered that Mr Williams had downloaded documents from its system and that he shared these with a colleague, who was also his trade union representative. Mr Williams was suspended again and the school began a second investigation.
With the original child protection disciplinary still ongoing, in May 2016 Mr Williams again asked for further details of the allegation. This request was denied. On 16 June 2016, Mr Williams wrote a letter of resignation to the school stating, among other things, that he was resigning because his colleague (with whom he had shared the various documents) had been told not to contact him while the investigations into their conduct were ongoing.
Mr Williams brought claims against the school, including for constructive unfair dismissal. Despite being highly critical of the school’s actions, the Employment Tribunal found that Mr Williams had not been constructively dismissed. This was because the ‘last straw’ event which instigated his resignation (the school preventing his colleague from speaking to him) was innocuous and not unreasonable. Mr Williams appealed to the EAT.
The EAT upheld Mr Williams’ appeal and said that the tribunal had been wrong to conclude that his constructive dismissal claim had to fail because the last straw was, in itself, innocuous and not unreasonable. It held that constructive dismissal is made out if:
(a) there has been conduct which amounts to a fundamental breach;
(b) the employee has not lost their right to resign in response to it (i.e. by affirming the breach); and
(c) the employee does then resign at least partly in response to it.
This will be the case even if other, more recent, innocuous conduct by the employer actually ‘tips’ the employee into resigning.
Here, the school’s handling of the disciplinary process had been a fundamental breach of the mutual term of trust and confidence. Mr Williams had not affirmed the breach and, although he resigned after being informed that his colleague could not speak to him, the reason for his resignation was at least partly due to the handling of the disciplinary. Accordingly, Mr Williams had been unfairly constructively dismissed.
Employers should be aware that even relatively minor and seemingly reasonable acts are capable of reviving an earlier fundamental breach of contract, which may in turn lead to claims for constructive dismissal. Consequently, employers should not think they are in the clear if an employee does not resign immediately after a dispute has arisen.