Ms A Wainwright v Cennox Plc
Ms A Wainwright v Cennox Plc [2023] EAT 101
Facts
The Appellant, Ms A Wainwright, was a long-serving employee of her former employer from 2002 until her resignation on 27th September 2019. Her employment transferred to Cennox PLC in January 2018, leading to a change in her job title from Customer Services Director to Head of Installations. On 17th August 2018, Ms Wainwright was diagnosed with cancer and began sick leave on 21st August 2018.
During her absence, a colleague was offered and accepted a permanent role as Head of Installations, a fact Ms Wainwright only discovered in November 2018 via LinkedIn. The Respondent's HR Director inaccurately assured her that her role would be unaffected and did not inform her that the new role was permanent.
In July 2019, Ms Wainwright was provided with a new job description and organisation chart, which she believed constituted a demotion, leading to an impasse and her raising a formal grievance. The UK Managing Director expressed surprise and disappointment at her grievance, a response the Employment Tribunal (ET) criticised. She later became ill through stress, and her work email access was temporarily removed. After delays in progressing her grievance, Ms Wainwright resigned, citing unhappiness with her treatment, including learning that a colleague had been given her job while she was on sick leave and being misled about it.
Held
The Employment Tribunal (ET) initially dismissed Ms Wainwright’s claims of direct disability discrimination, victimisation, wrongful dismissal, and constructive unfair and discriminatory dismissal. However, the ET did find that Cennox PLC had discriminated against Ms Wainwright contrary to Section 15 of the Equality Act 2010 (because of something arising in consequence of her disability) in two ways:
By appointing her colleague permanently to the Head of Installations role, which affected Ms Wainwright, without her input, and removing her from the organisational structure.
By misleading Ms Wainwright between November 2018 and March 2019 that her colleague's appointment was temporary.
Despite these findings, the ET concluded that Ms Wainwright’s resignation was due to her "erroneous perception of her status" and her inability to "negotiate" a Director title in the new structure, not because of the discriminatory acts.
The Employment Appeal Tribunal (EAT), presided over by Judge Keith, allowed Ms Wainwright's appeal. The EAT found that the ET erred by:
Failing to analyse whether the acts of discrimination found under Section 15 EqA also amounted to fundamental breaches of contract.
Failing to consider whether Ms Wainwright had affirmed her contract.
Failing to consider whether such breaches materially contributed to her decision to resign, clarifying that it did not need to be the "effective cause".
Providing inadequate reasons for concluding that Ms Wainwright did not resign because of the discriminatory matters, especially given her explicit statements in her resignation letter and witness statement.
Misapplying the law by assuming that one perceived cause for resignation (her status concerns) necessarily excluded other causes or factors, without conducting a structured analysis.
The EAT decided that the matter should be remitted to a differently constituted Employment Tribunal for reconsideration of the claims of constructive unfair and discriminatory dismissal, and wrongful dismissal. The original ET’s findings regarding direct discrimination, victimisation, and parts of the Section 15 EqA claim remain unaffected.
Comment
This case underscores the critical importance of a tribunal's structured analysis of causation in constructive dismissal claims, particularly when there are proven acts of discrimination. The EAT clarified that for a constructive dismissal claim to succeed, the employer's fundamental breach of contract (which can include discriminatory acts) does not have to be the sole or "effective cause" of the employee's resignation; it only needs to have "materially contributed" to the decision to resign.
The judgment also highlights the necessity for Employment Tribunals to provide adequate and comprehensive reasons for their conclusions, especially when rejecting an appellant's explicit evidence regarding their reasons for resigning. The EAT pointed out that an employer's actions in misleading an employee, even if misguided, can amount to a repudiatory breach of the implied term of mutual trust and confidence. The remittal to a new tribunal indicates that the original ET's errors went beyond mere inadequacy of reasons, extending to a misapplication of the law.
