The Employment Appeal Tribunal (EAT) has considered the relationship between discrimination and constructive dismissal in the case of Wainwright v Cennox plc.

The EAT held that acts of discrimination may amount to fundamental breaches of the implied term of trust and confidence, entitling an employee to resign and claim constructive dismissal.

Facts

The claimant, Ms Wainwright, was employed as Head of Installations of Cennox plc and had a long period of service. She was diagnosed with cancer and whilst she was on sick leave undergoing treatment, her employer appointed another employee to her role without consulting her. She only found out about it via LinkedIn. When she asked HR about it, she was assured that her position was unaffected – HR said that they did not want to upset her whilst she was on sick leave. She later discovered that the appointment was permanent. In discussions about her return to work, she was given a new job description and organisation chart. Ms Wainwright felt that she had been demoted. She raised grievances, which were not resolved. She subsequently resigned and brought various claims including constructive unfair dismissal and discrimination arising from disability under section 15 of the Equality Act 2010.

Decision

The employment tribunal upheld the claim for discrimination arising from disability. The relevant acts of discrimination included:

1. the appointment of a colleague to Ms Wainwright’s role without her input while she was absent due to cancer treatment; and
2. misleading Ms Wainwright about the permanence of her colleague's appointment.

The tribunal dismissed the constructive dismissal claim, finding that the resignation was based on a mistaken belief that she had been demoted.

On appeal, the EAT overturned this, holding that the tribunal had failed to assess whether the discriminatory acts amounted to a repudiatory breach of the implied term of trust and contract and if so, whether those breaches materially contributed to the resignation. In particular, the EAT noted that where an employer provides untrue statements to an employee, this can amount to a breach of contract.

The case was remitted to a new tribunal, where Ms Wainwright ultimately succeeded and was awarded over £1.2m, including £40,000 for injury to feelings.

Comment

This case is a strong reminder that discrimination and constructive dismissal are often closely linked. Employers must not only seek to avoid discriminatory conduct but also recognise that such conduct can breach the implied term of mutual trust and confidence. Missteps in handling grievances, poor communication, or misrepresentations—however well-intentioned—can lead to significant legal and financial consequences.