A worker can not claim constructive dismissal if he is in breach of the duty of trust and confidenceAberdeen City Council v McNeill [2009] UKEAT 0037_08_1011 | |||
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15/02/2010
Judge Smith in the EAT ruled in Aberdeen City Council v McNeill that where an employee has prior to his resignation also breached the implied duty of trust and confidence, there is no entitlement for him then to repudiate the contract. This applies even where the employer was also in breach. The EAT found that the employment tribunal's finding of constructive unfair dismissal was perverse in that it had not taken into account a range of misconduct by the claimant. The relevant law is Section 95(1)(c) of the Employment Rights Act 1996 that provides: "(1) For the purposes of this Part an employee is dismissed by his employer if … (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employers' conduct." The ERA96 doesn't define the employer's behaviour that entitles an employee to consider the contract terminated but the relevant principles of common law are however laid down in Western Excavating v Sharp [1978] IRLR 27. Without reference to this case workers always need to keep a level head when dealing with abusive or bullying employers, to prepare the ground well and not act in haste. Resigning and claiming constructive unfair dismissal is not a get out of jail free card. |
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The transcript of this case follows:-
Aberdeen City Council v McNeill [2009] UKEAT 0037_08_1011 | |||
2010 BA dress code forbidding the open display of faith symbols was not discriminatory - Eweida v British Airways Plc [2010] EWCA Civ 80 When deciding whether to allow an amendment the lateness of the application is only one factor to be taken into account by the employment judge - Baker v The Commissioner of Police of The Metropolis [2010] UKEAT 0201_09_0502 National courts should should strike down discriminatory legislation - Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECJCase C-555/07 Judges restrict employers' use of the illegality defence against employee unfair dismissal claims - SAN LING CHINESE MEDICINE CENTRE v LIAN WEI JI - [2010] EAT UKEAT/0370/09/ZT There is a right to legal representation at a disciplinary which might result in the loss of the right to practise a profession - G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 Cabin crew spending 5% of their time in the UK were considered to have worked partly at an establishment in Great Britain. - BA v Mak EAT [2010] UKEAT/0055/09/SM The 'genuine occupational requirement' rule may apply to a maximum age for employment - Wolf v Stadt Frankfurt am Main [2010] Case C-229/08 ECJ Different dress codes do not necessarily amount to sex discrimination - Dansie v. The Commissioner of Police for The Metropolis [2009] UKEAT Certain conditions must exist for the obligation to carry out a risk assessment for a pregnant worker to arise - ONeill v. Buckinghamshire County Council [2010] UKEAT 2009 An employment tribunal may decide if a compromise decision is unenforcable - Industrious Ltd v Horizon Recruitment Ltd & Anor [2009] UKEAT Registrar claiming right to refuse to officiate at civil weddings loses religious discrimination case - Ladele v London Borough of Islington [2009] EWCA Civ 1357 A philosophical belief based on science is protected by the Employment Equality (Religion or Belief) Regulations 2003 - Grainger Plc v Nicholson [2009] UKEAT/0219/09/ZT Christian counsellor who would not help same sex couples was not discriminated against - McFarlane v Relate Avon Ltd [2009] UKEAT 0106_09_3011 Under TUPE the obligation to inform always applies, even when no measures are contemplated relating to the transfer - Cable Realisations Ltd v GMB Northern [2009] UKEAT The Court of Appeal rules on Harassment and 'Oppressive and Unacceptable' behaviour Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 For s4A(3) of the DDA to apply the employer must have known (or ought to have known) that the employee was disabled and that the disability would affect him in the manner described in section 4A(1) - DWP v Alam [2009] UKEAT 0242_09_0911 A discrimination case may not proceed on the mere possibility that evidence might emerge during cross examination - ABN Amro Management Services v Hogben [2009] UKEAT 0266_09_0111 In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202 |
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