No Constructive Dismissal Where An Employee Is Already In Breach

16 February 2010

The EAT (Lady Smith) has handed down its decision in Aberdeen City Council v McNeill, which is authority for the proposition that if an employee is in breach of the implied duty of trust and confidence at the time of resignation, he/she is not entitled to terminate the contract on the basis that the employer has breached that term. In particular: “As in any contract of employment, one of the essential terms of the claimant’s contract was the implied term that neither would, without reasonable and proper cause, act in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee (Malik v BCCI).

It follows that if the claimant was, at the time he resigned, in breach of that implied term, he was in repudiatory breach and not entitled to terminate the contract on the basis that the respondents had themselves breached that implied term.”