In this edition we cover:

  • Whether acts of disability discrimination may amount to a fundamental breach of contract
  • If post-employment statements made by an employer can be whistleblowing detriments.

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 more often than not 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.

Christine Jamieson, Senior Paralegal in our employment team

Can post-employment statements by an employer be whistleblowing detriments?

In Day v Lewisham & Greenwich NHS Trust [2025] EAT 123 the Employment Appeal Tribunal (EAT) held that post-employment whistleblowing detriment claims can be brought where the detriment is closely related to the employment.

Background

Dr Day was employed as a junior doctor between August 2013 and August 2014 and during that period he had made various disclosures relating to patient safety concerns. He subsequently brought public interest disclosure (whistleblowing) and unfair dismissal claims against the Lewisham & Greenwich NHS Trust (the NHS trust) in the Employment Tribunal (ET) in 2014. Settlement of those claims was achieved, after Dr Day had given his evidence.

However, the NHS Trust then made statements to the media and other organisations relating to the case and its outcome, around the time of and shortly after the hearing of the 2014 claim.

Dr Day then brought new ET proceedings against the NHS Trust in 2019, on the basis that those public statements amounted to detriments suffered as a result of the protected disclosures (whistleblowing) he had previously made regarding patient safety.

The ET found only one of the statements had been a detriment. However, it did not accept there was a causative link between the detriment suffered and the disclosure made. Instead, it found the NHS Trust was attempting to mitigate negative press. It also decided that the detriment arose after employment ended so Dr Day was not acting ‘in employment’ and as such the detriment fell outside of section 47B of the Employment Rights Act 1996 (ERA).

Dr Day appealed the decision to the EAT on the basis the ET misapplied the legal tests for detriment and causation, had incorrectly concluded that the claim was not ‘in employment’ for the purposes of s47B of ERA, and erred in dismissing his costs application.

Applicable Law

Section 47B(1) of ERA provides that:

“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”.

Decision

The EAT dismissed the Appeal.

It did find however, that the ET was incorrect to hold detriments arising after employment ends would automatically fall outside the scope of s47B of ERA.

The EAT clarified that s47B applies where the detriment is closely connected to the employment, such as statements made in the context of tribunal proceedings about public interest disclosures during employment.

The definition of ‘worker’ under section 230(3) ERA includes a former employee, and ‘employer’ within that section refers to ‘the person by whom the employee or worker is (or, where the employment has ceased, was) employed’. As such, a claimant can be protected from whistleblowing detriment, even after their employment has ended.

The EAT held the ET had erred in failing to consider whether the NHS Trust’s refusal to withdraw or amend the public statements it made, after the Care Quality Commission raised concerns about them, constituted a detriment in itself – although ultimately, the EAT decided this did not affect the overall outcome, because the key matter for the EAT was causation.

In dismissing the Appeal and agreeing with the ET, the EAT found that the NHS Trust’s statements were not influenced to a material extent by the protected disclosures. Instead, they were made in response to media interest in the case and a desire to present the NHS Trust’s side of the story. The EAT also noted that the Trust was concerned about its reputation and the impact of negative publicity on its ability to recruit junior doctors into its training programme and more generally. It did not find a causative link between the NHS Trust’s statements and the protected disclosures made.

The EAT also dismissed Dr Day’s appeal on costs, agreeing with the ET that neither party’s conduct warranted an adverse costs order.

Comment

Katherine Irvine , Associate in our Employment team comments:

“This decision is of importance, as it confirms detriment protections under section 47B can extend to post-employment acts by the employer. However, it also clarifies the causation requirements for whistleblowing detriment claims under section 47B of ERA 1996, namely that claimants must be able to show a causal link between the detriment and the whistleblowing disclosures they made. As such causation can still, as was here, remain a stumbling block in achieving success in a whistleblowing claim at tribunal.
“From an employer’s perspective, it highlights the need to carefully consider all and any communications made relating to the worker, following employment ending. The employer’s reasons behind making such statements can be scrutinised by tribunals when assessing causal links to any whistleblowing detriment alleged.”

Ben Doherty, Partner, Head of Employment, Glasgow

Kate Wyatt, Partner, Edinburgh

Daniel Gorry, Partner, Glasgow

Gurjit Pall, Partner, Glasgow

Katherine Irvine, Associate, Edinburgh

Carla Codona, Solicitor, Glasgow

James Siwela, Trainee Solicitor, Edinburgh

Christine Jamieson, Senior Paralegal, Glasgow

Jane Watson, Head of Prism HR Consultancy, Glasgow

This newsletter has been issued by Lindsays based on publicly available information, internally developed data and other sources. Whilst all reasonable care has been taken to ensure the facts stated and opinions given are correct, Lindsays does not accept any responsibility for its content and advises that specific advice should be sought regarding the topics covered.