Breach of duty

Aberdeen City Council v McNeill

To succeed in a claim of constructive dismissal, employees have to show that their employer was in fundamental breach of a term of their contract. In Aberdeen City Council v McNeill, the Employment Appeal Tribunal (EAT) said, however, that if the employee is in breach of the implied duty of trust and confidence when they resign then they cannot rely on any subsequent breach of that duty by the employer.

Basic facts

Mr McNeill was a senior Council employee. When his line manager (Mr Woodcock) was suspended in February 2005 following allegations of financial misconduct, Mr McNeill disclosed two incidents of alleged sexual conduct between Mr Woodcock and an employee whom he line managed, known as GP, to other colleagues. In June 2005, GP accused Mr McNeill of bullying and harassing her.

In August 2005 Mr McNeill was suspended for the breach of confidentiality in relation to Mr Woodcock’s investigation to other employees and for making comments to colleagues that were “defamatory and undermined the position of a female colleague”. Following an investigation into those allegations, the Council unearthed a number of other potential disciplinary issues against Mr McNeill, including sexual harassment, intoxication at work and being uncooperative with other departments and colleagues.

After a protracted period of unfinished and abortive disciplinary hearings, Mr McNeill resigned in July 2006 saying that he had lost all trust and confidence in the Council. He then claimed constructive dismissal.

Tribunal decision

The tribunal decided that although Mr McNeill was guilty of misconduct for breaching the confidentiality of Mr Woodcock’s investigation and had not done enough to control the laddish culture at work, it upheld his claim of constructive dismissal.

It said that Mr McNeill had resigned “on account of conduct by the respondents which was calculated to destroy any relationship of trust and confidence.”

EAT decision

The EAT did not agree. It said that although the tribunal had “found as fact that the claimant had been guilty of misconduct in several respects”, it had not then gone on to consider whether, taken together, they amounted to a breach of the implied term of trust and confidence.

It also accused the tribunal of downplaying the seriousness of various incidents and of presenting a picture of his misdemeanours which was, at times, in direct contradiction of the evidence. For instance, describing his intoxication at work as “mere exuberance” and suggesting that sexual banter was an inherent feature of all friendships. It accused the tribunal of entering “into their own speculation by way, it seems, of providing some degree of excuse for the claimant”.

It took the view that both employers and employees are party to the contract and both are therefore obliged to perform their part of the bargain, saying that: “If a party to such a contract is in material breach of one of his obligations he cannot insist that the other party perform a reciprocal term”

In this case, when the various acts of misconduct were considered together, the EAT concluded that Mr McNeill was himself in breach of the “implied duty of trust and confidence” when he resigned. That being so, he could not bring a claim for constructive unfair dismissal arguing that his employer was in fundamental breach of contract in relation to the duty of trust and confidence in circumstances where he was in breach of that term himself.

It revoked the tribunal’s decision and dismissed Mr McNeill’s claim for constructive dismissal.