In De Clare Johnson v MYA Consulting Ltd the EAT considered a claim for constructive dismissal based upon the conduct of a third party.

Background

Mrs De Clare Johnson was employed as a housekeeper by MYA, a company managed by Mrs McKenzie from home. Mr McKenzie did consultancy work for MYA however he was not an employee and did not have any express authority to give instructions to Mrs De Clare Johnson. Following several incidents involving Mr McKenzie, Mrs De Clare Johnson resigned.

The Tribunal held that the actions of Mr McKenzie amounted to a breach of the implied term of trust and confidence and that the claimant had been constructively dismissed. MYA appealed on the basis that it was not responsible for the actions of a third party.

The decision was upheld by the EAT. There were several factors that indicated that MYA was liable. The EAT considered amongst other things that the behaviour complained of had occurred whilst the claimant was at work, carrying out tasks for the benefit of the company and that although there was no evidence of express authority being given to Mr McKenzie, it found that he was impliedly authorised to give instructions to Mrs De Clare Johnson.

Impact on employers

  • This decision is of relevance where a workforce is made up not only of a company's employees, but third parties such as consultants, secondees or agency workers. As part of the contractual arrangement with such third parties (or with their employers) a company should obtain clarity as to where liability will fall if a third party act leads to a claim by one of the Company's own employees.