In Frith Accountants Ltd v Law the EAT had to consider whether, in a successful constructive dismissal claim, an employee's own conduct can be grounds for reducing the basic and compensatory awards. In this case, there were concerns about Mrs Law's (L) performance, particularly, uncharacteristic carelessness. She refused to accept she had made some mistakes and her conversation appeared to be incoherent and rambling. Instead of raising the issue directly with L, the employer spoke to her son. L was horrified that a conversation with her son had taken place behind her back and she resigned, claiming constructive dismissal.

An employment tribunal (ET) upheld L's claim. While the employer had good intentions and the concerns were genuine, discussing L's work-related problems with her son breached the implied term of trust and confidence. When assessing compensation, the ET rejected the employer's argument that there should be a reduction because L had contributed to her dismissal by failing to accept criticisms about her performance. Genuine concerns about L's performance was not a valid reason for breaching the confidence owed to L by speaking to her son and by acting this way, the breach had been entirely caused by the employer.

The EAT held that while it would be unusual for a constructive dismissal to be caused or contributed to by the employee's conduct, it was not impossible because the statutory wording of the compensation provisions in dismissal cases applied equally to constructive dismissal, and blameworthy conduct can be grounds for reducing basic and compensatory awards. Within this context, the ET had erred by not considering whether it would be just and equitable to reduce the basic award to reflect its view of L's conduct (both sides, however, subsequently agreed a sum, which the EAT substituted for the tribunal award). As for the compensatory award, the ET had found the breach to be entirely employer-driven and its finding that there had been no reasonable or proper cause was unchallenged. Therefore, while not clearly stated, the ET had not found any causation on L's own part to justify making a reduction.

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