Can acts of disability discrimination amount to a fundamental breach of contract contributing to an employee’s resignation?
Yes, held the Employment Appeal Tribunal.
In the case of Wainwright v Cennox plc, the Employment Appeal Tribunal (EAT) considered whether an employment tribunal had erred in its decision by failing to analyse whether acts of disability discrimination also amounted to fundamental breaches of contract, and whether such breaches had caused the employee to resign.
Background
The Claimant in this case, Ms Wainwright, was the Head of Installations at Cennox plc from 2002 until 27 September 2019. She was diagnosed with cancer on 17 August 2018 and began sick leave on 21 August 2018. She remained in contact with Cennox during her absence and returned to work the following year, before a further period of sickness absence prior to her resignation in September 2019.
During Ms Wainwright's absence, Cennox offered her colleague a permanent role as Head of Installations. This was done without consulting with Ms Wainwright, as it was considered there would be enough work for two Heads of Installations, once she returned to work.
When Ms Wainwright asked Cennox's HR Director, she was assured her that her role would be unaffected. However, she was not informed that the new role was permanent.
In July 2019, following occupational health advice recommending a phased return, Cennox provided Ms Wainwright with a new job description and organisation chart. Ms Wainwright believed she had been demoted, but Cennox disagreed.
Ms Wainwright's manager suggested she raise a formal grievance to try to resolve matters. Ms Wainwright did not wish anyone under the UK Managing Director's responsibility to consider her grievance, and the one employee identified as satisfactory became seriously ill, which led to a delay in resolving the issues.
Before the grievance could be resolved, Ms Wainwright resigned, citing unhappiness with her treatment. Her resignation letter specifically referred to the delay in handling the grievance process which she described as the "final straw".
An employment tribunal dismissed Ms Wainwright's claims of direct disability discrimination, victimisation, wrongful dismissal and constructive unfair and discriminatory dismissal. It upheld a claim of discrimination because of something arising in consequence of disability, contrary to section 15 of the Equality Act 2010 (EqA 2010).
The tribunal found that Ms Wainwright's perception that she had been demoted was inaccurate, and that this was ultimately the sole reason for her resignation. It was on this basis that the constructive dismissal claim failed.
Ms Wainwright appealed to the EAT.
Applicable Law
Under section 15(1) of the EqA 2010, "discrimination arising from disability" occurs where both:
- A treats B unfavourably because of something arising in consequence of B's disability.
- A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
In a claim of constructive dismissal, the employee must resign in response to a fundamental breach of contract by the employer, although this does not need to be the sole or effective cause of resignation.
EAT Decision
The EAT found that the tribunal had correctly identified that acts of discrimination contrary to section 15 of the EqA 2010 had taken place between November 2018 and March 2019. These included the appointment of Ms Wainwright's colleague to a permanent role without her input while she was absent due to cancer treatment, removing her from the organisational structure, and misleading her about the permanence of her colleague's appointment.
However, the EAT found that the tribunal had erred by failing to analyse whether those acts of discrimination also amounted to fundamental breaches of contract. The EAT’s view was that the tribunal should have considered whether such breaches existed (such as a breach of the implied term of mutual trust and confidence), whether Ms Wainwright had affirmed her contract despite these breaches, and if she had resigned at least in part because of them.
There were numerous other examples in Ms Wainwright's witness statement as to the treatment she said caused her to resign, such as being misled and lied to for nearly a year. The EAT held that this error led to the tribunal's failure to consider whether, if constructively dismissed, the appellant's dismissal also constituted an act of discrimination in itself.
The tribunal should have considered whether the discriminatory acts they had identified could have formed part of Ms Wainwright's reasons for resigning, even if she also objected to other non-discriminatory aspects of her treatment.
The case was remitted to a differently constituted tribunal in which the claims for constructive unfair dismissal and discriminatory dismissal were upheld. Ms Wainwright was awarded £1,224,861.94 in total, including £40,000 for injury to feelings.
Comment
Discrimination against an employee will usually constitute a repudiatory breach of contract. Where an employee resigns after a series of events in a "last straw" situation, the fact that the last straw was not discriminatory does not automatically mean that a constructive dismissal was not discriminatory.
In this case, Ms Wainwright relied on Cennox's poor management of her grievance as being the last straw. Even if that may not have been discriminatory in itself, the tribunal was required to consider whether the earlier discriminatory acts had sufficiently contributed to the overall repudiatory breach.
Published 10 October 2025
