Your World of Legal Intelligence
 United Kingdom | +44 (0) 20 7284 8080

The Mutuality of Obligations Doctrine and Termination of the Employment Contract: McNeill v Aberdeen City Council (No 2)

Document Cited authorities 32 Cited in Related
Date01 May 2014
AuthorDavid Cabrelli
Pages259-265
Published date01 May 2014
DOI10.3366/elr.2014.0209

A claim for constructive dismissal under section 95(1)(c) of the ERA entails the application of a curious amalgam of traditional common law doctrine and self-contained statutory techniques. This statutory provision directs that an employee is constructively dismissed by his employer if the employee terminates the employment contract (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer's conduct. Pursuant to the decision of the Court of Appeal in Western Excavating (ECC) Ltd v Sharp,3

[1978] QB 761.

if an employee is able to show that the employer's conduct amounted to a repudiatory breach going to the root of the contract of employment this will be sufficient for the employee to establish constructive dismissal under section 95(1)(c). As such, the statutory constructive dismissal concept was hung on the coat-tails of orthodox common law principles under the law of contract. Subsequent to Western Excavating, it was held that a fundamental breach of an express term, or a common law implied term, of the contract of employment by the employer would be considered sufficiently serious to entitle the employee to a finding of constructive dismissal.4

M Freedland, The Personal Employment Contract (2003) 155–156; L Barmes, “Common law implied terms and behavioural standards at work” (2007) 36 Industrial LJ 35 at 37–38.

 Since the authorities demonstrate that a breach of the common law implied term of mutual trust and confidence (“ITMT&C”) is automatically repudiatory,5

Courtaulds Northern Textiles Ltd v Andrew[1979] IRLR 84 at 86 per Arnold J; Woods v W M Car Services[1981] ICR 666 at 672 per Browne-Wilkinson J; Morrow v Safeway's Stores[2002] IRLR 9; and Amnesty International v Ahmed[2009] IRLR 884 at para 70.

 the effect is that a breach by the employer will amount to a statutory constructive dismissal.6

Eastwood v Magnox Electric plc (and McCabe v Cornwall County Council) [2004] IRLR 733 at paras 4–7 per Lord Nicholls); Freedland, Employment Contract 155–156; Barmes (n 4) at 37–38; B Hepple, Rights at Work: Global, European and British Perspectives (2005) 52.

In McNeill the employee claimed that he had been constructively dismissed under section 95(1)(c) on the ground that his employer had committed a repudiatory breach of the ITMT&C of the employment contract. However, the employee was himself in anterior repudiatory breach, having breached the ITMT&C prior to his employer's repudiatory breach. When the employee's conduct breached the employment contract the employer failed to accept the employee's breach and terminate the employment contract. Hence, the employee's own repudiatory breach of contract was still in play when he claimed constructive dismissal. The central issue in McNeill7

Other legal points were addressed but this note is restricted to considering the mutuality issue. For example, it was held that the rules relating to the statutory concept of constructive dismissal under section 95(1)(c) should be governed by the proper law of the employment contract rather than English contract law at the time of the decision in Western Excavating, see McNeill at 117–118 per Lord Drummond Young (with Lord McGhie dissenting at 129–130).

was whether the employee's failure to come to the court with “clean hands” prevented him from founding on his employer's subsequent repudiatory breach by virtue of the doctrine of mutuality of contractual obligations

In the Employment Appeal Tribunal (“EAT”)8

Aberdeen City Council v McNeill[2010] IRLR 374.

Lady Smith held that the employee...

Get this document and AI-powered insights with a free trial of vLex and Vincent AI

Get Started for Free

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant

  • Access comprehensive legal content with no limitations across vLex's unparalleled global legal database

  • Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength

  • Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities

  • Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

vLex