When claiming constructive unfair dismissal, claimants have to show that they resigned in response to a fundamental breach of contract which may be the last in a series of less serious acts. In Williams v Alderman Davies Church in Wales Primary School, the Employment Appeal Tribunal (EAT) held that even if the last act was “innocuous”, the employee may still have the right to resign in response to it.

Basic facts

Mr Williams, a teacher, was disabled as a result of a mental impairment. In April 2015 he was suspended in relation to a child protection issue but was not given any further information at that point. Although the suspension was lifted in July, he was only allowed to return to school on non-teaching duties, which included organising a sports day. However, after developing severe stress symptoms, he had to be sent home.

In October he was told that it had been alleged he had “manhandled” a child, although he was still not told of the child’s identity nor that of his accuser. The following month he lodged a grievance about the way that the school had managed the process so far. As a result, the disciplinary was temporarily halted.

In February 2016 he was suspended again and a second disciplinary investigation was started, this time in relation to documents that Mr Williams had downloaded from the school’s systems after his first suspension. He had thought that these would help the union to form a picture of the poor treatment to which he had been subjected. His union representative was then also accused of data breaches and he was told he could not contact her.

His grievance was unsuccessful and, on the assumption that the first disciplinary would re-commence, he asked the school again for the names of the child and his accuser, but the school refused to provide it. On 13 June he wrote a letter of complaint about his treatment asserting that he had lost all faith in his employer and on 16 June, he resigned.

He brought tribunal claims for unfair constructive dismissal (the last act or “straw” being that he was forbidden to speak to his union rep), among other things.

Tribunal decision

The tribunal rejected his claim on the basis that the school’s decision to prevent contact was “innocuous” and could not therefore be relied on as a “last straw”. Although the school had done plenty of other things that Mr Williams could have relied on to substantiate a fundamental breach of contract, this was not one of them.

As the final straw was not one of a series of earlier acts which, taken together, amounted to a breach of the implied term of trust and confidence, the tribunal held that it did not need to examine the earlier history to ascertain whether or not the final straw did, in fact, have that effect.

EAT decision

Holding that the tribunal had adopted the wrong approach, the EAT held that
"so long as there has been conduct which amounts to a fundamental breach, the right to resign in response to it has not been lost, and the employee does resign at least partly in response to it, constructive dismissal is made out. That is so, even if other, more recent, conduct has also contributed to the decision to resign.”

In this case, the tribunal had found prior conduct which contributed to the decision to resign, and which amounted to a breach of the implied term. As Mr Williams had not affirmed the contract, there had therefore been a constructive dismissal.