This is a preview. To continue reading please log in or Register to read this article

Constructive dismissal: Fundamental breach and "last straw" principles revisited

This report relates to 2 case(s)

An employment tribunal was "hopelessly confused" between issues of constructive dismissal, which depend upon an assessment of whether or not the employer is in material breach of an employee's contract of employment, and issues of fairness, which arise when the employer effects a dismissal for a potentially fair reason within s.98 of the Employment Rights Act, the EAT holds in Johnstone v W Wilson & Sons 21.02.01 EAT 953/00. It is inappropriate to introduce questions of fairness or reasonableness into the issue of constructive dismissal, because a fundamental or material breach of contract cannot be defended on grounds of fairness. In Hamill v Strong & Co Ltd 01.12.00EAT 1179/99, the EAT holds that a tribunal was entitled to find that a series of different incidents, viewed cumulatively, gave rise to a fundamental breach of contract because of a common thread running through all the incidents, namely the failure of the employer to give the employee the necessary support. The EAT also gives guidance on the application in "last straw" cases of the doctrine of waiver of breach.