If Professor Buckland's case could be considered unhelpful for employers, they will derive some comfort from another recent case on constructive dismissal, this time from a Scottish division of the Employment Appeal Tribunal (EAT). This case establishes that if an employee has already committed a breach of the implied duty of mutual trust and confidence, he cannot rely on an employer's breach of the same duty to bring the contract of employment to an end. This applies even if the employer is unaware of the employee's misconduct at the time of its own breach.

In this case the employee had been suspended because he was suspected of wrongly disclosing confidential information about a disciplinary enquiry into one of his superiors. Following his suspension - which he claimed was a breach of the implied duty of trust and confidence - a whole catalogue of complaints emerged about his own conduct, including sexual harassment and drunkenness while on duty. The EAT thought these were sufficiently serious to mean he had long been in breach of the same duty himself. Part of the EAT's reasoning is based on Scottish common law, which is not necessarily the same south of the border, but there has been at least one English case which supports the conclusion it reached.

Click below for the full decision (Aberdeen City Council v McNeill).