It is well established in law that to claim constructive dismissal, there has to be a fundamental breach of contract in response to which the employee resigned promptly. The Employment Appeal Tribunal (EAT) confirmed in Pets at Home Ltd v MacKenzie that employees cannot rely on historic breaches which the employee had accepted by virtue of continuing to work.

Basic facts

Ms MacKenzie, as Assistant Manager, was told in a series of appraisals between 2009 and 2015 that her communication and leadership skills were poor and that she needed to communicate more openly with her team. However, at least two of the appraisals had rated her at grade 4 (the highest being 5).

In December 2014 she told her manager she was pregnant. In February 2015, the Deputy Manager’s post was advertised, the job description emphasising the need for the successful candidate to be a “people person and a real team player…with excellent communication skills” who could “really engage and inspire a team”. Because the Area Manager responsible for recruitment did not think Ms MacKenzie was suitable for automatic promotion, the role was advertised openly. She did not get the job and was told in feedback that it was because of communication issues. A female external candidate was appointed. The post became vacant again later that year and Ms MacKenzie, who was by this stage on maternity leave, put in a further application, attended a second assessment day but was again unsuccessful for the same reason.

The post was then re-advertised but she did not apply. She subsequently learned that a less experienced Assistant Manager who had previously reported to her had got the job (although it later transpired that he had only passed the assessment day at this point and his promotion was not confirmed for a number of months). She said this was the last straw and resigned from her employment. She claimed pregnancy and maternity discrimination and constructive dismissal.

Tribunal decision

Although the lay members on the tribunal panel agreed that the decision not to automatically promote Ms MacKenzie was an act of direct pregnancy and maternity discrimination, the tribunal unanimously concluded that her complaint had been lodged out of time and that there was no basis for extending it.

However, a majority agreed that the decision to promote someone less qualified and less experienced than Ms MacKenzie, combined with the past pregnancy and maternity discrimination, was the final straw for her. This amounted to a breach of the implied term of trust and confidence; and as she had resigned in response to that breach, they upheld her claim of constructive dismissal.

EAT decision

Starting with the finding of pregnancy and maternity discrimination, the EAT held that the majority on the panel had failed to have regard to all the evidence before it. This included not just the appraisals that rated Ms MacKenzie at grade 4, but all the other appraisals as well as feedback that the Area Manager had received from the store manager and other colleagues. This failure meant that the finding of discrimination could not stand.

As for the decision on the constructive dismissal claim, it was not clear what Ms MacKenzie was claiming as the final straw. If it was the promotion of the other Assistant Manager, this did not happen until several months after the date of her resignation. If it was simply being told that he had been promoted, then her claim needed to reflect that.

The panel had also failed to consider whether she had affirmed earlier breaches of contract as the first had occurred over a year before her resignation, the second over three months before. As a final straw could not revive an earlier breach which the employee had accepted, this undermined the conclusion on constructive unfair dismissal.