Could an employee’s own breach stop them from claiming against the employer? No, according to the Employment Appeal Tribunal in the recent case of Atkinson v. Community Gateway Association.


Mr Atkinson wanted to bring a claim of constructive dismissal against his employer. This meant he had to prove that the employer was in fundamental breach of his contract of employment. Accordingly, he claimed that the Association had breached the implied contractual obligation of trust and confidence in the way they were handling disciplinary allegations against him.

The disciplinary allegations, however, related to previous misconduct by Mr Atkinson, where he had allegedly breached the company’s email policy (which he had written himself) by sending overtly sexual emails. There was also an allegation that he had improperly assisted his girlfriend in getting a job with the Association.

The Association said that Mr Atkinson’s behaviour had put him in fundamental breach of his employment contract himself, and because this pre-dated their own alleged fundamental breach, he should not be able to claim for a fundamental breach against them.

Mr Atkinson also claimed that using the emails against him breached his human rights, and in particular the right to respect for his private and family life.

The Appeal Tribunal held..

..that Mr Atkinson would be allowed to bring his constructive dismissal claim. Even though they did not know about it, the Association had not elected to bring the contract to an end when Mr Atkinson committed his own breach. Therefore the contract was still in existence at the time of the Association’s own breach and Mr Atkinson would be able to continue with his constructive dismissal claim.

The Appeal Tribunal did confirm, however, that his compensation could be reduced by up to 100%, because the Association would have been able to dismiss him in any case.

The association’s email policy had also been clear that emails would be monitored, which meant that Mr Atkinson had no right to any privacy in the ones that he had sent to his girlfriend. His human rights claim therefore failed.


Employers will not now usually be able to rely on employees’ previous breaches of contract against them, to have constructive dismissal claims struck out. They will, however, be able to argue for a 100% reduction in any remedy.

The case is also a useful reminder of the importance of clearly drafted policies. Employers should be very careful to make sure that their email policies are clear that the employees should have no expectation of privacy, and that emails will be monitored.

Read the full case here.

Published in…

Updates: For employers: Constructive dismissal | For employees: Breach of contract | Constructive dismissal |

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