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29th September, 2014

Is a constructive dismissal claim barred by employee’s own breach?


In the case of Atkinson v Community Gateway Association UKEAT/0457/12 the Employment Appeal Tribunal has confirmed that an employee is not prevented from bringing a claim of constructive unfair dismissal purely because he is also in repudiatory breach of his contract of employment.

It was held that whilst the employee may still be able to bring the constructive dismissal claim, his own breach will be relevant at the question of remedy.

Mr Atkinson was subject to disciplinary proceedings brought by his housing association employer, Community Gateway Association (“CGA”). Following disagreements about the disciplinary procedure, Mr Atkinson resigned his position with immediate effect and brought a constructive unfair dismissal claim in the Tribunal.

CGA applied to strike out the constructive unfair dismissal claim on the basis that Mr Atkinson had committed his own repudiatory breach of contract which CGA were previously unaware of. In addition, CGA argued that Mr Atkinson’s contentions in relation to a breach of privacy did not stand up.

The claim was struck out, to which Mr Atkinson appealed.
On appeal to the EAT, it was noted that CGA established that it would have fairly dismissed Mr Atkinson, had it known about his original breaches of contract. On this basis compensation could be reduced by 100%. The case was remitted to a fresh Tribunal.

For further information and advice in relation to constructive dismissal, please contact Helen Watson on 01244 405565 or send an email to [email protected].



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