Case law updates

Constructive unfair dismissal: Demonstrating that an employee has affirmed or accepted a breach of contract is a way to defeat a constructive dismissal claim where the employee resigns in response to that breach. In a recent case, the Employment Appeal Tribunal (EAT) has looked at the extent to which the passage of time between the breach and resignation is relevant, concluding that a three-month gap was not affirmation on the facts. While the passage of time is a relevant factor, other issues may also be relevant to the question of whether the contract had been affirmed – in this case, it was relevant that some of the time lag was due to school holidays (the claimant was a teacher), there were ongoing negotiations between them, and the claimant had 40 years’ service. Like a constructive unfair dismissal claim reported last month, consideration of the overall circumstances was necessary to determine whether an employee had, in fact, affirmed their contract. (Leaney v. Loughborough University)

Whistleblowing – procedure and compensation: A claimant successfully argued that his dismissal occurred because he had made protected disclosures and he was awarded circa £1.6 million in compensation, including a 20% uplift because of a failure to follow the Acas Code on disciplinary and grievance. His employer tried to argue that the claimant was at fault for not following the grievance elements of the Acas Code but the EAT found that the disciplinary provisions were more appropriate and set out some guidance for the tribunal in determining whether the grievance or disciplinary (or both) provisions were relevant. The EAT also looked at the overall award – there is no maximum limit on the amount of compensation that can be awarded in a whistleblowing claim, and the EAT concluded that this was not overturned by contractual provisions in the employee’s contract of employment that sought to place an upper limit (of £240,000) on payments if his employment was terminated. (SPI Spirits (UK) Ltd v. Zabelin)

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