Constructive dismissal and discrimination: misleading an employee about their role during sickness absence was a breach of trust and confidence.

Background

In the case of Wainwright v Cennox, the claimant was a senior employee who went on sick leave following a diagnosis of breast cancer. While she was absent, the respondent, her employer, appointed someone else permanently into her role believing there would be enough work for the claimant and the employee covering her post, on her return. The claimant was inaccurately informed that her role would be unaffected. On her return, she was presented with a revised structure and a job description which she viewed as a demotion. She raised a grievance, experienced delays in the process, and was signed off sick with stress. She later resigned and brought claims of discrimination arising from disability, constructive unfair dismissal, and wrongful dismissal.

The tribunal upheld her claim of discrimination under section 15 of the Equality Act, finding that appointing someone to her role and misleading her about it was unfavourable treatment arising from her disability. However, it dismissed her dismissal-related claims, concluding she had resigned because she was unhappy about her job title and had not been constructively dismissed. The claimant appealed. 

Tribunal decision overturned: case remitted for re-hearing

The Employment Appeal Tribunal (EAT) found that the tribunal had erred in its approach to the dismissal claims. First, it had failed to assess whether the acts found to be discriminatory also amounted to repudiatory breaches of contract. Second, it wrongly required the discriminatory treatment to be the sole or effective cause of resignation, rather than assessing whether it had materially contributed. Third, it had not properly engaged with the content of the claimant's resignation letter, which clearly referred to the employer's conduct as the basis for her decision to leave. 

The EAT set aside the tribunal's findings on constructive and discriminatory dismissal, as well as wrongful dismissal, and remitted these claims to a new tribunal for hearing. 

Learning points for employers 

Discriminatory conduct against an employee will often, although not always, amount to a repudiatory breach of contract. In this case, following remission to a new tribunal, the claimant's claims for constructive unfair dismissal and discriminatory dismissal were upheld.

Employers should take care to be open and accurate with employees who are absent due to ill health - particularly when it comes to role changes. Misleading information, even if well-intentioned, can breach the implied duty of trust and confidence and lead to liability for constructive dismissal and discrimination. When responding to grievances, delays or poor communication can aggravate the situation.

This case is also a reminder that tribunals must properly analyse the link between discriminatory conduct and a resignation when assessing constructive and discriminatory dismissal claims. 

For more information or advice, please contact Alastair Fatemi in our Employment team.