Employment Commentary - 17/2/2010

Employee in Breach of Contract Could not Claim Constructive Dismissal

In the Appeal Tribunal the case of Aberdeen City Council v McNeill has been reviewed and the Tribunal has been at the wrong end of some finger wagging from the Appeal Tribunal over its decision.

In this particular case an employee resigned and claimed constructive dismissal, while the employer claimed the employee was in breach of contract by virtue of the fact that the employee's behaviour breached the implied duty of trust and confidence.

As a matter of law, the Appeal Tribunal ruled that where an employee was in breach of the duty of trust and confidence it could not claim constructive dismissal on the basis of any alleged breach by the employer.

On the facts of the case, on which this decision rested, the Appeal Tribunal found the Employment Tribunal's position perverse, in that the Tribunal had appeared to side with the employee and excuse some of the employee's behaviour. Examples were that the Tribunal had accepted the employee's argument that someone who appears drunk to one person, may be simply displaying mere exuberance and the Tribunal also accepted that sexual banter was a feature of all friendships.

The real lesson for employers in this case is that Tribunals are capable of taking against an employer, and in those circumstances it is not unknown for Tribunals to find ways of reaching a decision that is in the employee's favour, despite all the best efforts of the employer.