If the claimant is in breach of the implied duty of trust and confidence when he resigns, he cannot then bring a claim for constructive dismissal on the basis that the same term has been breached by the employer.

The claimant in this case, Mr McNeill, was suspended pending an investigation by his employer, Aberdeen City Council, into a series of acts of misconduct including sexual harassment, bullying, intoxication at work, not acting in the best interests of the council and being uncooperative with other departments and colleagues. Mr McNeill questioned the investigation and the way it was conducted and then tendered his resignation. He then brought a claim of constructive dismissal.

As he had breached the implied term of trust and confidence and acted improperly, the EAT found he could not seek to rely on the council's subsequent breach. The EAT were also critical of the tribunal's handling of the case as Mr McNeill's behaviour was largely excused.

Aberdeen City Council v McNeill