Devon and Somerset Fire and Rescue Service v Tilke

Constructive dismissal requires a repudiatory breach of the employment contract, assessed objectively and subject to the qualification that the conduct occurred without reasonable and proper cause. An employee who remains in employment after the breach may affirm the contract. The issue is whether the employee delayed too long before accepting the repudiation. A later event cannot revive the claim where it is innocuous and has not been found capable of contributing to a cumulative breach. An appellate tribunal should not remit a case for rehearing where the existing findings and correct legal directions make the outcome inevitable. It should substitute the only permissible conclusion.

The respondent resigned after a prolonged and unsuccessful attempt to return to operational firefighting duties. She alleged constructive unfair dismissal, relying principally on two emails circulated after earlier employment proceedings and the Service’s handling of her grievances, together with later complaints about the return-to-work process.

The Exeter Employment Tribunal upheld her unfair dismissal claim but rejected her other claims. The Employment Appeal Tribunal, UKEAT/0303/09/RN, allowed the Service’s appeal on four grounds, including failure to apply the correct trust-and-confidence test and failure to address affirmation after delay, but remitted the claim for rehearing. The Service appealed, arguing that the remission served no purpose because the claim had to fail on the tribunal’s findings. The central issue was whether the remission should stand or the unfair dismissal claim should be dismissed.

Disposition. Rimer LJ, with whom Black LJ agreed, allowed the Service’s appeal. The remission order was unjustified and the unfair dismissal claim was dismissed.

1. Trust and confidence. The implied term of trust and confidence is not absolute. It includes the qualification that the relevant conduct must occur without reasonable and proper cause, and breach is assessed objectively. The Employment Appeal Tribunal was entitled to hold that the employment tribunal had failed to apply those requirements, as explained in Malik v. Bank of Credit & Commerce International SA [1998] AC 20.
2. Affirmation. Even assuming that the emails and their handling constituted a repudiatory breach, the respondent’s grievance about them ended on 24 May 2007. Remaining in employment for a further 12 months showed affirmation of the contract. The issue was affirmation, not waiver. The approach stated in Western Excavating (ECC) Ltd v. Sharp [1978] QB 761 at 769 was therefore decisive.
3. Last straw. The later refusal to permit a further grievance appeal could not cure the difficulty. Although it may have prompted the resignation, the respondent had advanced no criticism of it and the tribunal made no adverse finding about it. It could not revive the earlier breach or undo affirmation.
4. Wider complaints. The employment tribunal made no finding that the later complaints, separately or cumulatively, amounted to a breach entitling the respondent to resign. No contingent appeal or identified error justified giving her a second hearing on those complaints.
5. Remission. The discussion of Dobie v. Burns International Security Services (UK) Ltd [1984] ICR 812 and Hellyer Brothers Ltd v. McLeod and Others [1987] ICR 526 confirmed that remission is unnecessary where the existing findings make the legally correct outcome inevitable and no further factual investigation is required. The Employment Appeal Tribunal therefore erred in remitting the claim.

• Court of Appeal (Civil Division): allowed the Service’s appeal and varied the orders below so that the unfair dismissal claim was dismissed.
• Employment Appeal Tribunal, UKEAT/0303/09/RN, order dated 25 January 2010: allowed the Service’s appeal against the employment tribunal’s decision on unfair dismissal and remitted the claim for rehearing by a differently constituted tribunal.
• Exeter Employment Tribunal, judgment dated 8 May 2009: upheld the respondent’s constructive unfair dismissal claim and dismissed her other claims.