Lessons for employers from two constructive dismissal rulings

This week our employment law expert Lynsey Howes looks at two recent Employment Appeal Tribunal (EAT) cases that show how constructive dismissal can happen, whether through a build-up of smaller issues or when linked to discrimination claims.

Marshall v McPherson

Mr Marshall was a nightshift HGV driver who raised concerns about increasing pressure in his role. Changes within the business meant he was struggling to take his legally required rest breaks. When he complained, his employer told him to manage the problem himself.

The situation escalated when the employer sent someone to accompany him on his shifts without telling him in advance. Mr Marshall raised further complaints, some going back as far as 2017, but these were not addressed promptly. Eventually, he resigned and brought a claim for constructive dismissal.

The EAT confirmed that the “final straw” in a constructive dismissal case does not have to be a major incident. In Mr Marshall’s case, delays in dealing with his grievance, combined with unannounced spot checks on his shifts, were enough to amount to a breach of trust and confidence. Taken together, these issues justified his resignation.

The takeaway for employers is clear: grievances should be dealt with promptly. Even relatively small breaches can, over time, amount to constructive dismissal if they undermine the employment relationship.

Wainwright v Cennox

In this case, constructive dismissal was considered in the context of discrimination.

Ms Wainwright took time off work for cancer treatment. During her absence, her employer appointed someone else to do her job. She was told the appointment was only temporary, but in reality, it was permanent. Feeling misled, she resigned and claimed both constructive dismissal and discrimination arising from disability.

The Tribunal agreed that the employer’s dishonesty amounted to discrimination arising from disability. However, it did not find constructive dismissal or discriminatory dismissal. Ms Wainwright appealed.

The EAT found that the Tribunal had not applied the correct test. It stressed the need to consider whether the discriminatory conduct breached the implied term of trust and confidence. If it had, the next question was whether Ms Wainwright resigned, at least in part, because of that breach. If so, her constructive dismissal claim should have succeeded. The Tribunal would then have needed to decide whether that dismissal was also an act of discrimination.

This decision is a reminder that when discrimination and constructive dismissal claims overlap, the correct sequence of questions is essential – for both tribunals and employers.

Lynsey’s thoughts

These cases show how constructive dismissal can arise from a build-up of smaller incidents or from discriminatory conduct that damages trust. For employers, they underline the importance of dealing with grievances quickly, being honest with staff, and considering how each decision could affect the relationship of trust and confidence.

*This article is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.