Employee awarded £1.2 million following return from sick leave constructive dismissal
The Employment Appeal Tribunal (EAT) ruled that the Employment Tribunal (ET) misapplied the law relating to constructive dismissal and remitted the case to a freshly constituted ET that subsequently awarded substantial compensation.
Background
The EAT handed down judgment in Wainwright v Cennox plc in 2023, however the judgment was not published until 2025.
Ms Wainwright was the Head of Installations at Cennox plc. She was diagnosed with cancer and began sick leave in August 2018.
During her sick leave, Cennox offered a colleague of Ms Wainwright the permanent Head of Installations role in the belief that there would be enough work within the business for both Ms Wainwright (upon her return) and her colleague. Ms Wainwright found out about the appointment of her colleague on LinkedIn in November 2018.
Ms Wainwright queried the appointment and the HR Director assured her that her role would not be impacted. The HR Director did not notify Ms Wainwright of the permanent nature of her colleague’s appointment as she did not wish to upset her during her cancer treatment.
Ms Wainwright returned to work in July 2019 and was provided with a new job description and organisation chart, which outlined fewer responsibilities. Ms Wainwright was aggrieved with this as she believed she had been demoted.
Ms Wainwright’s manager suggested that she raise a formal grievance. When Ms Wainwright raised a grievance, the UK Managing Director conveyed surprise and disappointment at her decision to do so. There was a delay in resolving the grievance as Ms Wainwright did not wish anyone under the UK Managing Director’s responsibility to consider it, and the one employee identified as satisfactory became seriously ill.
Given the delay and the lack of a grievance outcome (which Ms Wainwright described as the final straw), she resigned in September 2019. Ms Wainwright expressed dismay at her treatment and explicitly mentioned in her resignation letter the issue of learning, whilst on sick leave, a colleague had been given her job and the assurance given to Ms Wainwright that this would not affect her own role.
ET decision
The ET upheld Ms Wainwright’s claim of discrimination because of something arising in consequence of a disability, however dismissed the claims of direct disability discrimination, victimisation, wrongful dismissal and constructive unfair and discriminatory dismissal.
Ms Wainwright appealed to the EAT. In summary, she argued that:
- 1. The ET had failed to explain whether the acts of discrimination were repudiatory contractual breaches, and either alone or together formed part of her decision to resign.
- 2. The ET misapplied the law of constructive dismissal, by failing to ask itself whether the acts of discrimination were repudiatory breaches.
- 3. The ET ought to have analysed whether the acts were capable of amounting to repudiatory breaches and whether Ms Wainwright had treated them as such, or instead whether she had affirmed her contract.
EAT decision
The EAT agreed that the ET had correctly found that acts of discrimination arising from a disability occurred. Namely, the removal from the organisation chart; the appointment of the colleague on a permanent basis; excluding Ms Wainwright from messages; the HR Director’s misleading reassurance that the Ms Wainwright’s colleague’s appointment was not permanent and that Ms Wainwright’s role had not changed.
The EAT highlighted that the ET did not provide a suitable explanation for why the discriminatory acts did not amount to repudiatory breaches of contract. Ms Wainwright set out numerous examples in her witness statement and resignation letter which she said caused her to resign. There was no explanation by the ET as to why the evidence in Ms Wainwright’s resignation letter were ignored or rejected.
The EAT found that the ET had failed to analyse the discriminatory acts, and ought to have followed the principles set out in Williams v Governing Body of Alderman Davies Church in Wales Primary School. The ET had failed to consider:
- Whether the discriminatory acts amounted to repudiatory breaches of the implied term of mutual trust and confidence;
- Whether those breaches were affirmed by Ms Wainwright; and
- Whether they materially contributed to her decision to resign.
Due to this failure the ET did not consider whether, if there had been a constructive dismissal, whether it subsequently amounted to a discriminatory act.
The EAT found that the ET misapplied the law relating to constructive dismissal and did not adequately consider whether the discriminatory acts materially contributed to the resignation.
The case was remitted to a differently constituted ET.
Remitted ET
Ms Wainwright’s claims for constructive unfair dismissal, wrongful dismissal and discriminatory dismissal were upheld.
The ET were satisfied that the discriminatory acts of the permanent appointment of Ms Wainwright’s colleague to her role and the HR Director misleading Ms Wainwright by reassuring that her role was unchanged when she returned to work were central to the reasons for Ms Wainwright resigning and at the very least, part of the reason for her decision to resign.
The ET went on to consider whether these were repudiatory breaches of the contract. The ET were satisfied that being misled by the HR director, even if it was in a clumsy and well-meaning way, is likely to damage the implied term of trust and confidence and that misleading Ms Wainwright regarding her role not being impacted, was conduct which goes to the root of the contract and amounts to a repudiatory breach of the implied term of mutual trust and confidence.
Cennox argued that Ms Wainwright affirmed the breach by continuing to work, lodging a grievance and discussing the new split of the roles of Head of Installations with them. The ET found it was not an act of affirmation for Ms Wainwright to seek to give her employer the opportunity to clarify matters and if necessary, to put them right.
In a remedies judgment sent to the parties in May 2025, Ms Wainwright was awarded a total of £1,224,861.94 including an injury to feelings award of £40,000. She was awarded around £350,000 for past loss of income, bonus and pension, then around £57,000 for loss of employee benefits. Ms Wainwright was also awarded £37,000 as reasonable expenses for setting up her own business. The remainder of the award included future loss of income, benefits and interest.
Comment
This case highlights the dangers of making substantive changes to an employee’s post whilst they are away from work. If business changes are unavoidable or cover is essential whilst the employee is away, the employee must be kept abreast of the situation throughout. There is a fine line between not worrying an employee with work matters and misleading them that all will be exactly as it was upon their return if permanent changes have been made.
Employers should also be wary of each employee’s circumstances as particular protections are afforded to disabled employees. It is important to note that cancer is one of the few conditions “deemed” a disability under the Equality Act 2010. An individual with cancer meets the definition of disability under the Act from the time of diagnosis.
For other articles relating to constructive dismissal see below:
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