In the recent decision of Nelson v Renfrewshire Council [2024] EAT 132, the Employment Appeal Tribunal looked further at the implied term of mutual trust and confidence in the case of a teacher who resigned before exercising the entire grievance procedure brought against the head teacher. This case highlights the criteria to be satisfied for there to be a constructive dismissal and it will be an interesting case to observe when remitted back to Employment Tribunal for a retrial of the issues.
Key Legal Findings
The test for constructive dismissal under Section 95(1)(c) of the Employment Rights Act 1996 requires a repudiatory breach of contract by the employer, such as a breach of the implied term of mutual trust and confidence.
A breach of the implied term of trust and confidence occurs when, looked at objectively, the employer's conduct is calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee Malik v BCCI.
The Employment Tribunal erred in taking into account the claimant's failure to exhaust the grievance procedure, as this was an irrelevant consideration Tolson v Governing Body of Mixenden Community School.
The Employment Tribunal also erred in considering whether the conduct actually damaged the relationship of trust and confidence, rather than whether it was likely to do so.
Material Facts
The claimant was a teacher employed by the respondent.
The Head Teacher behaved aggressively and intimidatingly towards the claimant on 7th October 2021.
The claimant lodged a grievance, which was handled in a biased and unsatisfactory manner at stages 1 and 2 of the grievance procedure.
The claimant resigned on 7th November 2022, citing a serious breach of contract and constructive dismissal.
The Law
Western Excavating (ECC) Ltd v Sharp [1978] ICR 221 (repudiatory breach)
Malik v BCCI [1998] AC 20 (implied term of trust and confidence)
Tolson v Governing Body of Mixenden Community School [2003] IRLR 842
Leeds Dental Team v Rose [2014] ICR 77 (objective test for repudiatory breach)
Submissions of the Parties
The claimant argued that the Employment Tribunal erred in taking into account the failure to exhaust the grievance procedure, and in considering whether the conduct actually damaged the relationship of trust and confidence rather than whether it was likely to do so.
The respondent argued that the Employment Tribunal was entitled to consider the grievance procedure, and that it had applied the correct legal test.
Court Rationale
The Employment Appeal Tribunal held that the Employment Tribunal erred in taking into account the claimant's failure to exhaust the grievance procedure, as this was an irrelevant consideration under Tolson.
The Employment Appeal Tribunal also held that the Employment Tribunal erred in considering whether the conduct actually damaged the relationship of trust and confidence, rather than whether it was likely to do so under Malik and Leeds Dental Team.
The Decision
The Employment Appeal Tribunal allowed the claimant's appeal on the grounds identified, and remitted the case to the same Employment Tribunal for reconsideration of whether the conduct amounted to a repudiatory breach of the implied term of trust and confidence, without regard to the failure to exhaust the grievance procedure and applying the correct legal test.
PW-LA have represented many claimants in successful constructive dismissal claims. However, we always advise any employee where they seek legal advice before resigning that they should consider such a decision carefully. PW-LA can advise before any decisions are made or action taken to exit employment, and can assist with practical and strategic ways in which to deal with employment disputes. If as an employee you have already resigned, you must seek legal advice about your individual circumstances. If you are an employer and you are unsure about a claim brought by an employee for constructive dismissal, a review of the action taken by you is important to understand whether a claim of this nature is likely to succeed.
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