Cumulative conduct

Case 10: The facts

When Mr and Mrs Fergusson took over the management of a pub, their accommodation was in a poor state. Despite their complaints, the brewery did not carry out a refurbishment until three years later.

Complaints were later made against the Fergussons, and they were called to a disciplinary meeting without prior warning of the allegations against them or the opportunity to respond. They resigned, saying that this was the last straw in a cumulative series of events that amounted to a breach of the implied duty of trust and confidence.

A tribunal rejected their claims of constructive dismissal, finding that there had been no "continuous course of conduct" that had led to their resignation.

The ruling

The Employment Appeal Tribunal held that the tribunal had applied the wrong test for constructive dismissal. Rather than finding a continuous course of conduct, a tribunal must simply establish whether a series of incidents over a period of time - but not necessarily close together in time - can cumulatively amount to a breach of contract.

The case was sent to a different tribunal for rehearing.

Fergusson and Fergusson v Shepherd Neame Brewery UKEAT/0859/04