Can an employer argue that an employee cannot present a constructive dismissal claim if he himself is in repudiatory breach of his contract? This was the central issue for the EAT to decide in Atkinson v Community Gateway Association, after cases in the English appellate courts had come to different conclusions.
While investigating Atkinson’s (A) alleged misconduct, the Community Gateway Association (CGA) accessed his emails and discovered that he had been abusing the email system by sending overtly sexual messages to a female friend, who was “his lover”, and had sought to help her obtain a position with the CGA. A resigned before disciplinary proceedings were completed, complaining that they were being conducted in such a way as to constitute a repudiatory breach of contract and amounted to constructive dismissal.
The employer argued that A’s claims should be struck out as having no reasonable prospect of success and the ET agreed on the basis that: (i) the constructive unfair dismissal claim could not succeed as a matter of law because A was himself in fundamental breach of contract because of his misuse of CGA’s email system; and (ii) the employer’s accessing of A’s emails was not in breach of his Article 8 (right to private life) rights.
On appeal, the EAT held that the ET erred in law in concluding that where an employee claims a fundamental breach of contract by the employer, but the employer argues that the employee’s misconduct had already fundamentally breached the contract, then there can be no claim because there was nothing left for the employer to have breached. Doubts expressed in recent English decisions as to whether there was such a principle had been laid to rest by the Scottish Court of Session in McNeill v Aberdeen City Council. The correct solution in English law, in ‘simple’ terms, is that an employee is not barred by his own prior fundamental breach of contract from claiming constructive unfair dismissal. However, if that employee’s unfair dismissal claim is successful, the breach can be fully taken into account at the remedy stage and compensation reduced accordingly.
As for the human rights issue, the ET had not erred in law in their decision as to Article 8. A had used CGA’s email system in breach of the policy, which he had himself devised, to communicate with his lover in the manner described by the ET. To describe this as an unjustified interference with A’s private life, when CGA were legitimately investigating A’s conduct in the circumstances described, was untenable.
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