The Employment Appeal Tribunal (EAT) has held in Nelson v Renfrewshire Council that an employment tribunal had been wrong in its approach when it determined that the employer's conduct did not amount to a repudiatory breach of the implied term of mutual trust and confidence entitling the employee to resign and claim unfair constructive dismissal. The case was remitted back to the tribunal for reconsideration.
N was a teacher and lodged a grievance about the school's head teacher following a meeting about a work-related issue. She alleged that the head teacher had behaved in an aggressive and intimidating way towards her. There was partial corroboration of her account by witnesses who overheard the incident. An investigation took place and N's grievance was dismissed. She appealed and her appeal was rejected. She had the ability to appeal again under the final stage of the grievance procedure but, having lost her faith in the grievance process, N resigned with immediate effect. She stated in her resignation letter than her only option was to resign because, amongst other things, the evidence of first-hand witnesses had been ignored. She then brought a claim of unfair constructive dismissal alleging that the way in which the head teacher had behaved towards her, and the manner in which her grievance was handled, amounted to a repudiatory breach of the implied term of mutual trust and confidence.
The tribunal dismissed N's claim. It found that although the head teacher had acted towards her in an aggressive and intimidating way, this was a brief, one-off incident and was out of character. It caused some damage to the relationship of trust and confidence but did not seriously damage it so as to amount to a breach of the implied term. In terms of the grievance procedure the tribunal found that there was a reasonable expectation that the final stage of the procedure would have been independent, fair and free from bias and that it would have provided a realistic chance of righting the wrongs of the earlier stages. As the internal processes had not been exhausted at the date of N's resignation, the relationship of trust and confidence had not been damaged seriously enough to found a claim for constructive dismissal.
The EAT upheld N's appeal. It held that the tribunal had impermissibly attached weight to her failure to follow all the stages of the grievance procedure and there was an explicit link between this and its conclusion that the relationship had not been damaged to the extent necessary to found a claim for constructive dismissal. It pointed out that the previous EAT decision of Tolson v Governing Body of Mixenden Community School held that the only conduct to be considered when determining an issue as to constructive dismissal is that of the employer. The fact that N had not completed all stages of the grievance procedure was an irrelevant consideration when determining whether a repudiatory breach had occurred.
Take note: The decision in Nelson makes it clear that there is no onus on an employee to ensure that an internal process, such as a grievance process, is exhausted before bringing a claim of constructive unfair dismissal. If the employer has committed a repudiatory breach of contract then nothing more is needed.
