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Is a resignation in constructive unfair dismissal required to be in response to all conduct leading to a repudiatory breach?

22nd May, 2014

In the recent case of Clements v Lloyds Bank UK/EAT/0474/13/JOJ, the Employment Appeal Tribunal considered the relationship between discrimination and constructive unfair dismissal.

During a performance review, Mr Clements was told by his manager that he was “not 25 any more”, a statement which the manager later denied. However, the Employment Tribunal accepted Mr Clements’ evidence that this remark was made and found that it was in fact an act of age discrimination. The Claimant resigned his position at Lloyds Bank approximately six months after the remark, although it was held that the manager’s comments did not form part of the conduct which led to his resignation.

The Claimant appealed against the Employment Tribunal’s decision that his constructive dismissal was not caused by age discrimination. In dismissing his appeal, the EAT found that whilst the remark was an act of discrimination, it was not a material cause of the repudiatory breach of contract leading to Mr Clements’ constructive dismissal. The EAT agreed with the first instance decision that the resignation was actually due to the conduct of Lloyds Bank in trying to move Mr Clements from his job on performance grounds.

The EAT went on to question whether a Claimant who resigns in response to a course of conduct which amounts to a repudiatory breach of contact can legitimately be said to have resigned in response to some aspects of that conduct but not all aspects of it. It was held that this would be dependant on the facts of a particular case, but that in the context of Mr Clements, the discriminatory remark was not a factor leading to his resignation.

Finally, the EAT rejected Mr Clements’ argument that the manager’s evidence throughout the case should have been treated with a greater degree of caution because he had lied when giving evidence specifically about the remark. The EAT noted that it would be careless for a Tribunal to reject all evidence of a witness just because he is found to be untruthful on one point.

For further information and advice in relation to age discrimination, please contact Claire Brook on 01244 405575 or send an email to [email protected].

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