Constructive dismissal and disability: a costly lesson for employers

The Employment Appeal Tribunal (EAT) awarded more than £1 million in Wainwright v Cennox plc, after finding that the employer’s poor handling of absence and disability issues amounted to discrimination and constructive dismissal. This case stands as a clear reminder to employers of the serious legal and financial consequences that can arise from getting absence management wrong, particularly where disability is involved.

Background

Ms Wainwright was employed by Cennox plc for nearly 17 years, most recently as Head of Installations. She was diagnosed with breast cancer and took two periods of sick leave for treatment. During her absence, Cennox temporarily appointed a colleague to cover her role. When that individual was offered a position at a rival company, Cennox responded by offering her the permanent role of Head of Installations.

Cennox assumed there would be sufficient work for both employees to effectively share the role upon Ms Wainwright's return, but this assumption was not clearly documented or communicated. Ms Wainwright found out about the appointment via a LinkedIn post and contacted Cennox about it while on sick leave. She was incorrectly told that her role would remain unaffected. Later, she was sent a revised job description which she perceived as a demotion. She raised a grievance, which was poorly handled and significantly delayed, and ultimately resigned.

Ms Wainwright brought claims for disability discrimination and unfair constructive dismissal in the Employment Tribunal (ET).

Employment Tribunal findings

The ET found that Cennox's appointment of a permanent replacement for Ms Wainwright was discriminatory and amounted to unfavourable treatment on grounds of disability. The Tribunal concluded the appointment would not have occurred had Ms Wainwright not been receiving treatment for breast cancer (a condition which automatically qualifies as a disability under the Equality Act).

However, the ET rejected her claims of unfair constructive dismissal and wrongful dismissal. It did not find that her resignation amounted to a discriminatory dismissal, nor that there had been a repudiatory breach of contract.

EAT findings

Ms Wainwright appealed, arguing that the ET had failed to properly consider whether the discriminatory treatment she had suffered amounted to a repudiatory breach of contract and therefore whether it had materially influenced her decision to resign.

The EAT agreed with Ms Wainwright. It held that the ET had misapplied the law on constructive dismissal by assuming that one cause of resignation necessarily excluded others. In doing so, it clarified that:

• Under section 95(1)(c) of the Employment Rights Act 1996, an employee is dismissed if they resign in response to a repudiatory breach of contract.
• The employer’s breach need not be the sole or main reason for the employee's resignation; it must simply have materially contributed to it.

The EAT found that the ET had failed to assess whether the discriminatory treatment experienced by Ms Wainwright amounted to repudiatory breaches of her contract, and whether they influenced her resignation. The case was remitted to the ET to properly consider these questions.

The ET ultimately found in her favour on both constructive dismissal and discriminatory unfair dismissal. She was awarded over £1.2 million in compensation, including £40,000 for injury to feelings (at the upper end of the Vento bands).

Key lessons for employers

This case highlights several important takeaways for employers, particularly those managing long-term sickness absence:

Awareness of the law

Employers must be aware of the extent of protections available to disabled employees under the Equality Act, including the duty to make reasonable adjustments and avoid discriminatory treatment. Under the Equality Act, a person is considered disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. However, certain conditions, including MS, cancer and HIV, are automatically considered disabilities from the point of diagnosis.

Where temporary cover is required to manage the workload of an employee on sick leave, employers should take extra care with how those arrangements are handled and communicated (see below). Poor planning or unclear messaging can give rise to legal risk, especially where the employee is disabled.

The importance of communication

Cennox's failure to communicate with Ms Wainwright about the changes to her role – including its misleading reassurance that her role was unaffected – was a central issue in this case. Employers must strike a careful balance between being considerate and being transparent with employees who are on sick leave. Avoiding difficult conversations during sick leave may feel compassionate, but it can lead to legal risk if the employee is misled or excluded from key developments.

Employers should have clear policies and practices for keeping in touch with employees on long-term sick leave. This helps to manage expectations, maintain trust, and avoid misunderstandings about role changes or workplace developments.

Where genuine changes to an employee’s role or terms are being considered, it is essential to carry out a full and meaningful consultation. This includes explaining the reasons for the proposed changes, seeking the employee’s views, and considering any alternatives or adjustments. Employees on sick leave must be given the same opportunity to engage in the consultation process as those in work, with flexibility around how and when discussions take place, depending on their health and circumstances. Failure to consult meaningfully can contribute to claims of constructive dismissal, particularly where the employee is already vulnerable or has raised concerns.

Handling processes

The EAT’s decision highlights that resignation is often influenced by multiple factors and that a constructive dismissal claim can still succeed even where an employer's breach has not been the sole or main reason for the employee's resignation. This underscores the importance of handling all employment processes, including grievances, role changes, and resignations, with care, particularly where the employee is disabled or has raised concerns.

If an employee has raised concerns or a grievance, for example, about discrimination, poor communication or unfair treatment, these issues should be carefully reviewed and risk assessed before any process concludes. Employers should ensure that any resignation is not the result of unresolved concerns or avoidable missteps. Where appropriate, offering support, engaging in meaningful dialogue, and documenting decisions clearly can help reduce legal risk and preserve trust.

Many thanks to Bijou Kaye, current trainee in the team, for her help in preparing this article.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2025