EAT overturns ET’s strike out decision in a constructive dismissal claim


Re: Atkinson v Community Gateway Association UKEAT/0457/12/BA

The claimant alleged that he was the victim of constructive dismissal and brought proceedings against the respondent at the ET. The claimant alleged that he suffered a detriment at the result of a public interest disclosure (PID). The detriment was said to have been caused by the respondent’s chief executive officer and vice-chair.

The ET struck out the claimant’s case. The ET concluded that because the claimant had been guilty of conduct which amounted to a repudiatory breach of his contract the constructive dismissal claim was bound to fail. The ET also concluded that the respondent could not, as a matter of law, be vicariously liable for the acts of their employees in relation to detriment suffered as a result of a PID.

The EAT overturned the decision of the ET and remitted the matter to a newly constituted Tribunal.

The EAT noted that there was conflicting authority as to whether a prior fundamental breach of contract by an employee barred a later constructive dismissal claim. However, the EAT noted that the matter had been settled by Aberdeen City Council v McNeil [2014] IRLR 114, which established that a prior breach by an employee did not bar a later constructive dismissal claim. It was accepted, nonetheless, that an ET would have to consider the prior breach by the employee when considering whether it was appropriate to reduce the level of compensation.

It was accepted by the respondent that, as a matter of law, an employer could be vicariously liable for the detriment suffered by an employee following a PID, and that the ET had misapplied the ratio of NHS Manchester v Fecitt [2011] EWCA Civ 1190.

Laura Prince was involved in this case.