By James Lenihan, Member, Employment Rights Manager
& William Webb, Employment Rights Lawyer
Background
Ms Wainwright, a long-serving employee, resigned from Cennox Plc in 2019 and brought multiple claims to the Employment Tribunal, including constructive dismissal and disability discrimination under section 15 of the Equality Act 2010. She had been diagnosed with cancer in 2018, and issues arose while she was off work receiving treatment. During her absence, a colleague was permanently appointed to her role without her knowledge. Although reassured that her position would be unaffected, upon returning to work, Ms Wainwright discovered otherwise and eventually resigned, citing concerns about her treatment.
The ET upheld only part of her discrimination claim, specifically that she had been misled about the permanence of her colleague’s appointment and excluded from organisational communications. However, it rejected her claims of constructive unfair and discriminatory dismissal, concluding she resigned due to a perceived loss of status, not discriminatory acts constituting breaches of contract.
Appeal
Ms Wainwright appealed to the Employment Appeal Tribunal (EAT), arguing that the ET failed to properly consider whether the acts of discrimination also amounted to fundamental breaches of contract that led to her resignation. She also said the ET failed to apply the correct legal test for constructive dismissal—namely whether discriminatory acts materially contributed to her resignation, not whether they were the sole or effective cause.
EAT Decision
The EAT upheld the appeal in part and remitted the case to a freshly constituted tribunal. It found that:
- Failure to analyse causation adequately: The ET didn’t adequately explain why the discriminatory acts it identified did not form part of the reasons for resignation. Ms Wainwright’s resignation letter and evidence referred explicitly to these issues, which the ET failed to properly engage with.
- Misapplication of legal test: The ET wrongly treated Ms Wainwright’s dissatisfaction with her job title as overriding all other causes. The EAT clarified that under Williams v Alderman Davies and Meikle, a breach need only materially contribute to the resignation—it does not have to be the sole cause.
- Constructive dismissal claims: The ET failed to assess whether being misled by the employer (about her role and the appointment of her colleague) amounted to a repudiatory breach of contract. The EAT referenced Rawlinson v Brightside Group, where misleading an employee was held to breach the implied contractual term of mutual trust and confidence.
The EAT upheld the ET’s findings that the employer had not directly discriminated against or victimised the Ms Wainwright on the basis of her disability.
Why This Matters
This judgment reinforces that employers’ actions—particularly around communication, honesty, and the treatment of disabled workers—can amount to repudiatory contractual breaches, even if not intentionally malicious or if taken in an attempt to assist an unwell employee. It also affirms that where employees resign following a series of events, tribunals must consider all contributing factors—not just one dominant issue. Trade union representatives and claimants should make explicitly clear in letters of resignation, grievances and tribunal pleadings that the employer’s alleged unlawful act/breach of contract is a material cause of the employee’s decision to accept the contractual breach through resignation.
