The Claimant in this case resigned after being disciplined and issued a final written warning following an altercation with another member of staff. She claimed previously that her performance had been unfairly criticised and that the final warning amounted to the last straw.
The Court of Appeal set down 5 questions to be used in all constructive dismissal cases.
1) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?
(2) Has he or she affirmed the contract since that act?
(3) If not, was that act (or omission) by itself a repudiatory breach of contract?
(4) If not, was it nevertheless a part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a (repudiatory) breach of the Malik term? (If it was, there is no need for any separate consideration of a possible previous affirmation.)
(5) Did the employee resign in response (or partly in response) to that breach?