In the Scottish case of Aberdeen City Council v McNeill, the EAT held that if an employee breaches their implied duty of trust and confidence prior to their resignation they are not then entitled to claim constructive dismissal.
M was a long serving employee of the Council as a senior manager with responsibility for more that 500 members of staff. M was suspended and an investigation was commenced into various disciplinary matters including being under the influence of drink at work, bullying and sexual harassment, breaching confidentiality and not acting in the best interests of the Council. The investigation process continued for 10 months before M tendered his resignation. M subsequently claimed that he had been constructively dismissed as the Council's conduct during the investigation had destroyed the relationship of trust and confidence.
The Council claimed that M's conduct prior to his resignation had amounted to a breach of the implied duty of trust and confidence and therefore he was not entitled to rely on the Council's subsequent breach of the same term. The contract had effectively come to an end when M breached his contract. The ET took the view that the allegations of sexual harassment, which included rating female colleagues by the number of pints of beer you would need to consume before sleeping with them, was banter amongst colleagues and being under the influence of alcohol at work as 'displaying mere exuberance', did not amount to a breach of the implied duty of trust and confidence. The EAT found that the ET had minimised the seriousness of M's misconduct and had reached a perverse conclusion. The EAT found that M's conduct had seriously damaged the relationship of trust and confidence with the Council and that the Council had not affirmed the breach in contract as the full extent of M's behaviour was only uncovered during the course of the investigation.
Best Practice
This case is a useful reminder to employers that an employee's conduct prior to their resignation can cause the contract to be repudiated and therefore the employee loses the right to be able to claim constructive dismissal. However, employers cannot rely on conduct that they were aware of and had accepted without terminating the contract of employment.
For advice in relation to possible breaches of the implied duty of trust and confidence, please contact Gemma Cawthray on 0117 314 5266.
This publication is for guidance only. Reliance should not be placed upon it and nor should action be taken, without obtaining advice in respect of the specific circumstances applicable. We will be pleased to provide such advice or assistance.
