An employee’s previous repudiatory breach did not prevent him from bringing a constructive dismissal claim

In Atkinson v Community Gateway Association, the Claimant employee alleged that he had ‘blown the whistle’ on a breach of confidentiality, but had then been subjected to a detriment in that his employer commenced an investigation into his own conduct, which included improperly accessing his emails. The employer found inappropriate emails which clearly breached the employer’s email policy which applied to all employees. They amounted to a serious (repudiatory) breach of contract which would have entitled the employer to dismiss the employee. However, before this could happen, the employee resigned and claimed constructive dismissal. The question for the EAT was - could he bring such a claim, while he himself was already in repudiatory breach of contract?

The EAT found that an employee who might himself be dismissed for gross misconduct can still resign in response to the employer’s breach, in particular in circumstances where the employer is not (yet) aware of the employee’s breach. However, the misconduct will be relevant to remedy and could result in a reduction in compensation, possibly to zero.

Points to note –

If one party to the contract is in repudiatory breach of contract, the ‘innocent’ party may choose to treat the contract as being at an end. They must do so quickly however, otherwise they will, by implication, be taken to have acquiesced to the breach.

The employee in this case claimed that his human rights had been infringed by his employer accessing his emails. As the emails were on the employer’s system and not marked ‘Private and personal’ this argument failed. In these circumstances, he had no reasonable expectation of privacy, and in any event the employer’s actions were a proportionate means of achieving a legitimate aim.

This article is part of the UK Employment Law Update for October 2014