The EAT has recently decided yes following the case of Frith Accountants Ltd v Law but recognised that it would be usual but not exceptional for a constructive dismissal to be caused or contributed to by any conduct by the employee.
In this case, the Claimant Mrs Law was 62 years old and her employer had developed concerns about her performance. She was uncharacteristically careless and when they raised it with her she refused to accept that she had made mistakes and was thought to be rambling and incoherent. The employer decided with the best of intentions to discuss her conduct, performance and behaviour with her son. When Mrs Law discovered this she resigned and claimed constructive dismissal. A Tribunal upheld her claim as notwithstanding the intention, the employer had breached the implied term of trust and confidence by approaching her son. The Tribunal directed itself to consider how long she would have remained employed for but for her constructive dismissal, whether she had failed to mitigate her loss and whether there should be any reduction in either award for contributory conduct. The Tribunal rejected the employer’s argument for contributory conduct.
The EAT held that the Tribunal had erred in failing to consider whether it was just and equitable to reduce the basic award to reflect its view of her conduct but had been entitled not to reduce the compensatory award in view of the findings it had made. The case is a useful reminder in that sense of the different basis for the reduction to the basic and compensatory awards in contributory fault cases. The EAT also observed that the circumstances giving rise to a successful constructive dismissal claim may provide limited opportunity for employers to argue that it would be either just and equitable to make a reduction or that the employee’s conduct caused or contributed to their dismissal.