A look at the difficult task Tribunals face when there are multiple reasons for an employee’s resignation.
When a constructive dismissal claim is brought a Tribunal will, after establishing that there has been a resignation, look at the reason for that resignation. In many cases there will not just be one reason for the resignation; there are often multiple reasons why an individual resigns, and only one of them may relate to a repudiatory breach of the contract of employment.
The question posed in this article is whether those ‘multiple reasons’ matter? Essentially the issue is whether a Tribunal must find that the breach of contract is the main or principal reason for the resignation. Advisors, representatives and Tribunals tax themselves with the issue of ‘the principal reason’ with surprising regularity. In fact, as is very clear from the case law, if there are multiple reasons for a resignation, this doesn’t matter at all. There is no need for the breach of contract to be the principal reason for the resignation, provided that it is a reason then a finding of constructive dismissal can and should be made.
This issue has been recently considered, and the principle restated, by the EAT in Logan v Celyn House Limited (UKEAT/0069/12/JQJ) on 19th July 2012. In that case it was accepted that there was a repudiatory breach of contract by the Respondent in failing to pay sick pay, and that the Claimant had resigned, partially, as a result of that. However, the Employment Tribunal had misdirected itself by asking, and finding, that the principal reason for the dismissal was in fact perceived bullying, rather than the sick pay issue. The EAT found that the Tribunal should simply have asked itself ‘whether the breach of contract involved in failing to pay the sick pay was a reason for the resignation, not whether it was the principal reason’.
In Logan the EAT considered the case of Meikle v Nottinghamshire County Council [2005] ICR 1, in which LJ Keane had stated that the resignation must be in response to the repudiation to amount to acceptance of a repudiatory breach of contract, but that if the employee also objected to other actions or inactions of the employer this would not vitiate the acceptance.
It was therefore held in Logan that although there had been a two month delay in resigning after the failure to pay the sick pay, and the Claimant had made clear that the principal reason for resigning was the perceived bullying, there had been a constructive dismissal. It is however important to note that there is a difference between the breach of contract not needing to be the principal reason for the dismissal, and the Tribunal needing to find as a question of fact that it was one of the real reasons for resigning. If there were other, more significant, reasons for the resignation, and there was, as in Logan, some delay between the breach and the resignation, it may be difficult to persuade a Tribunal to accept that the breach did in fact amount to a reason for the resignation.
Accordingly, whilst multiple reasons do not matter, as a question of law, and the Tribunal should not be asking what the principal reason was, multiple reasons may still provide some difficulties for Claimants evidentially, when it comes to proving, as a question of fact, that the breach of contract was a reason for resigning.