Constructive Unfair Dismissal

Here is another recent case for you, this time the tribunal erred when considering whether discriminatory actions were a fundamental breach that led to resignation.

In Wainwright v Cennox, Ms Wainwright resigned from her job after a period off work with cancer after learning that someone had been appointed to work in the same role as her.

She was told this new role was only temporary, but this wasn’t true. She claimed discrimination arising from a disability and constructive dismissal. The tribunal found that appointing someone else to the same role as her, and misleading her by telling her that the appointment was temporary in nature, amounted to discrimination arising from a disability.

However, the tribunal still found that there was no constructive dismissal and that the dismissal was not discriminatory. The employee appealed.The Employment Appeal Tribunal held:

• The tribunal should have asked whether the discriminatory actions breached the duty of trust and confidence between employer and employee.

• If they did, it should then have looked at whether Ms Wainwright resigned, at least in part, because of those breaches.

• If so, then her constructive dismissal claim should have succeeded.

• The tribunal should then have considered whether, as a result, her constructive dismissal also amounted to an act of discrimination.