The claimant in Ishaq v Royal Mail Group Ltd was involved in a dispute with a member of the public while he was on his postal round in March 2014. He reported that he had been attacked but failed to mention that he had also kicked out at the customer. The incident was caught on CCTV and two weeks later the employer invited the claimant to view it, telling him that it indicated both abusive behaviour and dishonesty – the claimant had not given an accurate account of the incident.
On the day fixed for the interview, the claimant resigned, citing in his resignation letter various complaints about his treatment by his employer over the preceding months, and stating that he had decided to resign because of them. Among the matters he raised was the provision of unsuitable duties – because of a foot injury the employer had agreed only to roster him to one particular route but had breached this agreement. He claimed constructive unfair dismissal, but his claim was dismissed on the basis that the real reason for his resignation was to avoid disciplinary proceedings in relation to the incident and it was not in response to the fundamental breach that he had established.
The EAT agreed with the Tribunal. The reason put forward for the resignation in the letter was not genuine; the real motivation was to avoid the disciplinary action.
The EAT commented that its first reaction to a case like this would be to say that the employee was resigning because of the breach, whether or not he relied on other matters. An example is where an employee resigns following the employer's breach but has found another job – this won't necessarily prevent a constructive dismissal claim. Nottinghamshire County Council v Meikle in 2004 established that the employee must resign in response, at least in part, to the employer's fundamental breach of contract, but it does not have to be the effective or main cause of the resignation. But the fact that there must be some connection between the employer's breach and the resignation does mean that it is open to the employer to argue that the reason given for resigning, even though it is sufficient in the sense of being a repudiatory breach, is not a genuine reason for the purposes of constructive dismissal.
In Ishaq, the employer's decision to put the employee on an unsuitable roster, knowing that the claimant was unfit for those duties, was a fundamental breach, but crucially it was a breach that had been continuing since January 2014 – two months before the incident – and the Tribunal had decided it could not be a coincidence that he resigned in response on the very day he was due to attend a disciplinary interview.