In the recent case of Atkinson v Community Gateway Association UKEAT/0457/12, the Employment Appeal Tribunal (EAT) considered whether a tribunal had been correct to hold that an employee, who was in repudiatory breach of contract, could not bring a claim for constructive unfair dismissal.

Background

In order to establish a constructive dismissal, there needs to be:

  • A repudiatory or fundamental breach of contract (actual or anticipatory) by the employer.
  • An election by the employee to accept the breach and treat the contract as at an end – the employee must resign in response to the breach.
  • The employee must not delay too long in accepting the breach, as it is always open to an innocent party to “waive” the breach and treat the contract as continuing.

Article 8 of the European Convention on Human Rights provides that everyone has the right to respect for his private and family life, his home and his correspondence.

Facts

Mr Atkinson was employed by Community Gateway Association (the Association) as its Director of Resourcing.  During his employment the Association found that there had been a £1.8 million overspend.  At first, Mr Atkinson said he was accountable for this but he later tried to pass responsibility to others.  Mr Atkinson was subsequently advised that his position was untenable and he could either resign with a compromise package or face disciplinary proceedings.  Mr Atkinson declined the compromise package and an investigation commenced.

While investigating Mr Atkinson’s conduct, the Association discovered that he had been conducting a relationship with a female friend who worked for another housing association and, in breach of the Association’s email use policy, had been sending overtly sexual messages to her that had not been marked private or personal.  He had also sought to help her obtain a position in the Association.  Mr Atkinson resigned before disciplinary proceedings were completed, complaining that they were being conducted in such a way as to amount to a repudiatory breach.

Mr Atkinson brought various claims in the employment tribunal, including a claim for constructive unfair dismissal based on a fundamental breach by the Association in searching his emails.

Employment tribunal decision

The employment tribunal held that Mr Atkinson’s claim of constructive dismissal had no reasonable prospect of success because of his own prior repudiatory breach of contract, before the Association had searched his emails.

With regard to the searching of Mr Atkinson’s emails, the employment tribunal held that this was a proportionate means of pursuing legitimate aims and therefore did not breach his article 8 rights.

Mr Atkinson appealed.

EAT decision

The EAT held that the employment tribunal had been wrong to conclude that where an employee claims a fundamental breach of contract by the employer but the employer argues that the employee’s misconduct had already fundamentally breached the contract, there can be no claim because there was nothing left for the employer to have breached.

The EAT considered the recent case of McNeill v Aberdeen City Council [2013] CSIH 102 and noted that the correct solution in English law, in “simple” terms, is that an employee is not barred by his own prior fundamental breach of contract from claiming constructive unfair dismissal.  However, if that employee’s unfair dismissal claim is successful, the breach can be fully taken into account at the remedy stage and compensation reduced accordingly.  Mr Atkinson’s appeal was allowed in this respect and his claim remitted to a fresh tribunal to decide.

With regard to the expectation of privacy, it was said that Mr Atkinson could not have expected emails which were not marked personal or private to have been overlooked by the Association during its investigation.  The EAT held that the tribunal had not, therefore, made an error when it concluded that Mr Atkinson had no expectation of privacy in relation to the relevant emails.

Comment

This decision is helpful in that it sets out the approach tribunals should take to claims involving both constructive dismissal and preceding misconduct.  It is also a useful reminder of the value of clear policies and procedures, in this case making sure employees are aware of the limits of using their employer's email system and how use will be monitored.