Constructive dismissal claims are one of the hardest claims to successfully pursue. This is because the burden of proof is on the employee to show that they resigned as a result of a repudiatory breach of their contract of employment by their employer. A repudiatory breach is where the employer does something that goes to the root of the contract meaning that it is no longer viable.
The Employment Appeal Tribunal (EAT) recently considered whether an employment tribunal had erred in determining whether the employer’s conduct did not amount to a repudiatory breach of the implied terms of mutual trust and confidence entitling the Claimant to resign.
In Nelson v Renfrewshire Council, Jen Nelson was employed as a teacher. She filed a grievance about her school’s headteacher who she said had acted in an aggressive and intimating way towards her. This was partially corroborated by a witness who overheard the incident. However, her grievance was dismissed at stage 1 of the council’s grievance procedure.
Ms Nelson appealed to stage 2 of the grievance procedure but again her grievance was rejected. She had available to her a third stage of the grievance process where she could appeal to a panel of council members. However, by this stage she had lost faith in the grievance process. She did not file an appeal and resigned with immediate effect. In her resignation letter, she said that first hand witness evidence had been ignored and that the stage 1 grievance officer who was not impartial and that the stage 2 grievance officer had ignored her submission on bias and impartiality.
Ms Nelson brought a claim for constructive dismissal, but it was dismissed by the tribunal on the basis that while the headteacher had acted aggressively to her this was a one-off incident and on their view it did not seriously destroy the relationship of trust and confidence that is at the core of the employment contract. They said that even though the first grievance officer was biased and had acted unfairly and the second grievance officer had not corrected this bias, this still did not seriously damage the relationship of trust and confidence.
The tribunal took into account that Ms Nelson had not exhausted the internal grievance process where there would have been an independent investigation and realistic expectation of rectifying the previous wrong grievance stages.
Ms Nelson appealed to the EAT. The EAT held that the tribunal had erred in law when determining that the employer’s conduct did not amount to a repudiatory breach. The tribunal had incorrectly taken into account that the employee had failed to engage with the third and final stage of the grievance process. She had resigned after she became dissatisfied with the employer’s handling of her grievance after the second stage.
The EAT decided that the tribunal should have only considered the conduct of the employer not the employee. The fact that Ms Nelson had not completed all stages of the grievance procedure – or that, had she done so, a favourable outcome might have been achieved was an irrelevant consideration when determining whether a repudiatory breach had occurred.
The case has been sent back to a fresh tribunal to consider her claims again.
This blog was written by Anita Vadgama, Partner at didlaw
