an unlawful discriminatory act can amount to a breach of the duty of trust and confidence which itself can be a fundamental breach of contract leading to a successful claim of unfair dismissal

For general relevant notes see Constructive dismissal/discrimination cases and/or Maternity/maternity leave/return to work (part-time) .

Representation:-

Outline facts:-

Mrs Shaw worked as an Area Sales Executive for CCL. CCL refused to allow her to work part-time on her return from maternity leave. In addition she only wished to travel within a 100 mile radius of her home and did not wish to be away from home overnight. These "flexible work" requests were also refused. She resigned in protest and brought claims of sex discrimination and constructive unfair dismissal in the Leicester employment tribunal.

Mrs Shaw won her discrimination claim and was awarded some £18,000. However she lost her unfair dismissal claim on the basis that her resignation had been because CCL had rejected a request for flexible working which it was not obliged to agree - legally it was obliged only to give proper consideration to such a request.

Decision:-

Mrs Shaw won.

The original tribunal had mistakenly considered that her unfair dismissal claim was based on CCL's refusal to accede to her request for flexible working. That would not be a fundamental breach of contract but in fact that was not the real basis of her claim - although if it had been, as the tribunal wrongly thought it was, the tribunal's decision to reject her constructive dismissal claim would have been right.

Rather the correct position was that Mrs. Shaw's claim for part-time working had not been considered by CCL. CCL had only considered her request for flexible working. As CCL had rejected all her (maternity related) claims, even though they had not considered them all, they were guilty of unlawful sex discrimination. That discrimination constituted a failure to carry out the duty to maintain trust and confidence. That was a fundamental breach of contract and amounted to repudiation of her contract by CCL. The repudiation had been accepted promptly by Mrs Shaw who resigned as a result. That was constructive dismissal. There was no explanation or defence of fairness. Accordingly the EAT substituted a finding of unfair dismissal.

editor's note:
on the face of it, the fact that Mrs Shaw appealed even though she had been awarded £18,000 by the original tribunal may seem odd. However the underlying reason for her appeal was to provide her with added protection against the possibility of an appeal by the employer against the (loss of earnings part of the) original sex discrimination award.