Constructive Dismissal

[Thanks to Kathleen Donnelly of Henderson Chambers for providing this case summary]

The EAT (Lady Smith) has handed down its decision in Aberdeen City Council v McNeill, which is authority for the proposition that if an employee is in breach of the implied duty of trust and confidence at the time of resignation, he/she is not entitled to terminate the contract on the basis that the employer has breached that term.

On the facts of the case, the EAT held that the Tribunal had failed to consider all of the Claimant's acts of misconduct together, which included sexual harassment, intoxication at work and lying to his employer, and in minimising the seriousness of the Claimant's misconduct the Tribunal had reached a perverse conclusion.

The EAT was particularly critical of the Tribunal's approach to excusing the Claimant's behaviour, including speculation by the Tribunal that a person who seems drunk to one person may be "displaying mere exuberance", and the suggestion that sexual banter is an inherent feature of all friendships. The EAT revoked the judgment of the Tribunal and dismissed the Claimant's claim for constructive dismissal on the basis that the Claimant was himself in material breach of the implied duty of trust and confidence.