Bunning v GT Bunning and Sons Ltd.

Permission to appeal should be granted where the employment tribunal’s reasoning arguably failed to address whether an employer’s conduct concerning pregnancy-related workplace risks amounted to a fundamental breach of the implied term of trust and confidence. An employee’s acceptance of alternative work may be relevant to waiver and causation, but it does not necessarily resolve whether earlier breaches occurred or whether later conduct formed a final straw. The application also raised arguable questions concerning the operation of Regulation 16 of the Management of Health and Safety at Work Regulations 1999, including the circumstances in which suspension may be required.

The Employment Tribunal found that Miss Bunning had resigned and had not been constructively dismissed, although it upheld her pregnancy-discrimination complaint. The Employment Appeal Tribunal dismissed her appeal on 12 November 2004 and refused permission to appeal.

Before the Court of Appeal, the principal issue was whether the tribunal had properly addressed the alleged breaches concerning risk assessments, workplace safety, suspension and the implied term of trust and confidence. The application also raised the effect of Miss Bunning’s acceptance of work in the stores and the alleged failure to respond promptly to her complaint.

1. Application granted. The court granted permission to appeal and directed that the appeal be heard by a three-judge court, including at least one judge with Employment Appeal Tribunal experience.
2. The Employment Tribunal’s conclusion that acceptance of work in the stores acknowledged a viable continuation of the employment and waived past breaches was open to challenge. The adequacy of the stores risk assessment and its relevance to waiver and causation were arguable issues.
3. It was arguable that the respondent’s conduct concerning the statutory risk-assessment requirements constituted a fundamental breach of the implied term of trust and confidence sufficient to entitle the employee to terminate the contract.
4. The alleged failure to respond to the employee’s letter was advanced as the final straw in an accumulated breach. The court referred to Omilaju v Waltham Forest London Borough Council, but the judgment records that authority in the course of summarising the appellant’s argument and does not determine the point.
5. The court also considered it arguable that Regulation 16(3) required attention to whether the risk could be avoided by altering working conditions or hours, and whether suspension was required where it could not. The appeal was left unrestricted in scope. A short document was ordered concerning the discrimination issue.

• Court of Appeal (Civil Division) — Permission granted on 9 February 2005. The court directed a three-judge appeal hearing.
• Employment Appeal Tribunal — Appeal dismissed on 12 November 2004; permission to appeal refused.
• Employment Tribunal — On 19 November 2003, found that Miss Bunning had resigned rather than been constructively dismissed, but found pregnancy discrimination. Remedy was adjourned.
• Earlier Employment Tribunal decision — On 19 December 2002, the claim was dismissed in its entirety; the Employment Appeal Tribunal allowed an appeal on 1 July 2003 and remitted the claim for rehearing by a differently constituted tribunal.