Logan v Celyn House Ltd
Mrs Logan was employed as a veterinary nurse by Celyn House Ltd from September 2008. Under her contract of employment, she was entitled to four weeks’ sick pay, paid at her basic pay rate.
In May 2010, Mrs Logan was called to a disciplinary hearing to take place on 2 June 2010, but on 2 June she went off sick. On 7 June, she wrote again to confirm that she was signed off sick. Her employer paid her statutory sick pay (SSP) only for the month of June. Mrs Logan wrote to query this and demand payment of contractual sick pay on 1 July, and again on 5 July.
Mrs Logan had already raised grievances against her employer alleging bullying and her grievance regarding sick pay was added to her list of grievances prior to a grievance hearing on 5 July. On 19 July, the employer rejected the grievances and in September it rejected Mrs Logan’s appeal.
Mrs Logan resigned on 13 September 2010. She brought a claim for constructive dismissal.
The tribunal found that the failure to pay contractual sick pay for June was a repudiatory breach of contract, but that the principal reason for Mrs Logan’s resignation was not the failure to pay sick pay but her perception that she had been bullied and the employer’s treatment of her grievances. The employer was not in breach of contract in those respects. The tribunal therefore rejected the constructive dismissal claim.
On appeal, the Employment Appeal Tribunal (EAT) overturned the tribunal’s decision. The tribunal had asked itself what the principal reason for the resignation was. It should have asked whether or not the breach of contract in failing to pay sick pay was a reason for the resignation – ie whether or not there was a causal connection between the repudiatory breach of contract and the resignation. The non-payment of sick pay was a reason for the resignation.
The EAT substituted a finding of constructive dismissal.
It was established by the Court of Appeal in Nottinghamshire County Council v Meikle  IRLR 703 CA that, to succeed in a constructive dismissal claim, the employee must resign in response, at least in part, to the employer’s fundamental breach of contract.
However, the breach does not have to be the effective cause of the resignation. The fact that the employee also objected to other actions of the employer that were not a fundamental breach of contract will not negate the acceptance of the repudiation.
Once a repudiatory breach of contract has been established, an employee can claim constructive dismissal as long as the breach was one of their reasons for resigning. However, where there are multiple reasons for the resignation, there may still be some difficulties for claimants evidentially when it comes to proving that the breach of contract was a reason for resigning.
Mary Clarke, partner, DLA Piper
Practical guidance from XpertHR on constructive dismissal