Can an employee resign and claim constructive unfair dismissal where they feel they were wrongly disciplined?

The Employment Appeal Tribunal (“EAT”) in the case of Harris v East Lancashire Hospitals NHS Trust considered whether the Employment Tribunal (“ET”) was correct in dismissing the Claimant’s claim of constructive unfair dismissal, after the Claimant contends that she resigned partly on the grounds of the Respondent having insufficient reasons to formally discipline her.


The Claimant initially started working for East Lancashire Hospitals NHS Trust (“the Respondent”) in 1998. She subsequently qualified as a Registered Nurse and became formally employed by the Respondent in 2005. She was an experienced nurse with a good record. In 2017, the Claimant tended to a patient who was being transferred by an ambulance and administered a unit of blood which had not been previously prescribed by a doctor. As a result, this was then subject to investigation and the Claimant was subject to the Respondent’s disciplinary procedure. The Claimant was subsequently given a written warning to which she appealed against. This appeal was dismissed on 17 November 2017, and the written warning upheld.

The Claimant resigned from her employment on 1 January 2018 and subsequently brought a claim of constructive unfair dismissal on the grounds that she had resigned in response to the Respondent’s conduct and partly on the grounds that she believed there were insufficient grounds to subject her to the formal disciplinary procedure.

The Law

Relevant to this case was whether the EAT had sufficient jurisdiction to hear the Claimant’s appeal and whether the ET had made in error in law in delivering its original judgment. Under section 21 of the Employment Tribunals Act 1996, a party can only appeal a decision to the EAT on questions of law. The EAT cannot intervene in any factual determinations made by the ET, only on errors of law.

Secondly, constructive dismissal is a concept developed in employment law where an employee resigns in response to conduct by his/her employer that amounts to a repudiatory breach of contract. To bring a claim of constructive unfair dismissal, an employee must first show that they are dismissed, for constructive dismissal this is governed under section 95(1)(c) of the Employment Rights Act 1996 (“ERA”). An employee who seeks to rely on an employer’s conduct for reason of their resignation, and therefore dismissal in law must usually resign without notice. The employee must then demonstrate that the conduct by the employer was so bad, that there was a fundamental breakdown in the employment relationship and the dismissal in law was therefore unfair.


In the first instance, the ET held that the Respondent had “reasonable and proper cause” to instigate the disciplinary process and held that the implied term of mutual trust and confidence had not been broken. The ET therefore dismissed the Claimant’s claim.

The EAT upheld the decision of the ET, dismissing the Claimant’s appeal and held that there was no error in law in rejecting the Claimant’s claim of constructive unfair dismissal. The Judge held that the ET Judge had provided ample evidential basis for reaching the conclusions he did at the first instance and the Judge was entitled to conclude that the Respondent did have proper reasons to move to a formal disciplinary process in the circumstances.


This case highlights not only the limits on which EAT’s can comment on ET judgments, and overturn decisions only where there are errors of law, but also highlights that employers have a wide scope to instigate formal disciplinary action against employees. So long as an employer has a reasonable and proper cause to discipline an employee, it will rarely be found that the employer was wrong to instigate such proceedings. As a general concluding point for all employers to remember, where you do engage your disciplinary procedure, it is important that you follow the ACAS Code of Practice as a minimum standard, otherwise an employee’s dismissal may still be found to be procedurally unfair, even where it may not necessarily be substantively unfair.

For specific advice on whether it is appropriate to discipline an employee in certain circumstances, please do not hesitate to contact one of our specialist employment lawyers in our team.

Case reference: Harris v East Lancashire Hospitals NHS Trust [2022] EAT 41

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