Do two wrongs mean the loss of a right?

Posted 25/09/2014

In Atkinson v Community Gateway Association UKEAT/0457/12/BA http://www.bailii.org/uk/cases/UKEAT/2014/0457_12_2108.html the Employment Appeal Tribunal had to decide whether or not a Claimant is prevented from bringing a constructive dismissal claim against his employer because he himself is in breach of contract.

Mr Atkinson had pursued claims for constructive unfair dismissal and detriment for seeking to whistleblow. While investigating his conduct the his employer accessed his emails and discovered that he had been abusing the email system by sending overtly sexual messages to a female friend and had sought to help her obtain a position with the employer. He resigned before disciplinary proceedings were completed, complaining that they were being conducted in such a way as to amount to a repudiatory breachof his contract.

The original Employment Tribunal accepted the employer’s submission that the Claimant’s claim should be struck out without hearing all the evidence because he was in clear breach of his contract of employment. However, the EAT held that this was the wrong approach, it may well be the case that an employee accused of gross misconduct will resign rather than face the music at a disciplinary hearing but that misconduct will be relevant to the remedy/compensation he receives – it should not prevent him from bringing such a claim at all.