In order to succeed in a claim for unfair constructive dismissal, the employee has to show two things: first, a fundamental breach of contract by his employer; and second that he resigned because of that breach. The normal defence from an employer is that there was no fundamental breach, and there is a vast amount of case law as to what does or does not amount to a fundamental breach of contract. However, rather unusually, in the recent case of Ishaq v Royal Mail Group the question was not whether there was a fundamental breach of contract, but whether Mr Ishaq resigned because of it.
The facts of the case are briefly as follows. Mr Ishaq was a postman who had been in his job for about 10 years. He resigned on 17 March 2014. He suffered from an injury to his big toe that meant that he was unable to walk great distances, and it was accepted by the parties that he was disabled within the meaning of the Equality Act 2010. This meant that the Royal Mail were obliged to make reasonable adjustments to facilitate Mr Ishaq’s disability, and the adjustment was that he should be put on a particular route, number 322, which was within his capabilities. The Royal Mail were aware of this, but, in breach of their duty to make reasonable adjustments, did not always roster him on that route.
On 1 March 2014 there was an incident with a member of the public whilst Mr Ishaq was doing his rounds. He reported the incident to his manager saying that he had been attacked by the customer, but failing to mention that he had also kicked out at the customer. He then went off sick. Royal Mail managed to obtain some CCTV which showed the incident. They invited him to attend a meeting to view the CCTV. Mr Ishaq promptly resigned.
After he resigned Mr Ishaq brought claims of disability discrimination and unfair constructive dismissal. The Employment Tribunal found in his favour on the discrimination claim, but rejected the claim for unfair constructive dismissal, on the basis that Mr Ishaq had not resigned in response to the fundamental breach of contract of Royal Mail failing to make reasonable adjustments regarding his disability. They found that he resigned because he knew that he had made a false report to his manager about the incident with the customer and that as a consequence he may well have been dismissed. Mr Ishaq appealed to the Employment Appeal Tribunal (EAT).
The EAT rejected his appeal. They reviewed the Employment Tribunal’s reasoning and found that it was sound. They found that the Tribunal was perfectly entitled to reach the conclusion that Mr Ishaq had resigned in anticipation of disciplinary action against him, which of course would not have been a breach of contract by the employer.
This case serves as a good illustration of the fact that the employee in a constructive dismissal claim has to resign as a consequence of the fundamental breach. If he does not, then his claim will not succeed.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).