The Claimant worked for some years at a school maintained by the Respondent and, following her resignation, she claimed that she had been unfairly constructively dismissed. The ET found that the Respondent was in breach of its obligation to provide manual handling training to the Claimant but, in view of mitigating actions taken by the Respondent shortly before the Claimant's resignation, it determined that the breach was not a fundamental breach; it therefore held that the Claimant was not constructively dismissed, and it dismissed her claim of unfair dismissal. The Claimant appealed on grounds including that the ET failed to determine whether the breach of contract, which it had identified, was a fundamental breach at any time before its effects had been 'mitigated'.

The EAT held that the ET erred because it failed to consider and determine whether there was a fundamental breach at any point in time prior to the mitigating actions of the Respondent. Since the ET had made a clear finding as to the reason for the resignation, and that the breach materially influenced the decision to resign, the ET could only properly have concluded that the breach had grown worse over time and become a fundamental breach, and that the breach was not affirmed at any point before the Claimant resigned. Accordingly, the only proper conclusion was that the Claimant was constructively dismissed, and the EAT would substitute a finding that the Claimant was unfairly dismissed.