Jones v The Collegiate Academy Trust

Constructive dismissal requires a serious, repudiatory breach of the employment contract. For breach of the implied term of trust and confidence, the employer’s conduct must, viewed objectively and without regard to subjective perception or subconscious intention, be calculated or likely to destroy or seriously damage the relationship of trust and confidence.

The employer’s conduct must be assessed as a whole, including its cumulative impact. The Employment Tribunal need not address every disputed fact if its essential findings and reasoning are adequate. Limited shortcomings in support, communication or grievance handling did not, cumulatively, amount to repudiatory breach.

The Claimant appealed against the Employment Tribunal’s dismissal of her claims for disability discrimination and constructive unfair dismissal. The appeal was confined to issues concerning constructive dismissal, the sufficiency of the Tribunal’s factual findings and the adequacy of its reasoning.

The Claimant contended that the Tribunal had applied the wrong formulation of the implied term of trust and confidence, failed to make necessary findings, and failed properly to consider alleged shortcomings in disciplinary support, absence management and grievance handling. The central issue was whether the Tribunal had erred in law in concluding that the Respondent’s conduct did not constitute a repudiatory breach.

1. Appeal dismissed. The Employment Tribunal’s decision was unimpeachable and disclosed no error of law.
2. Constructive dismissal requires conduct amounting to a serious and repudiatory breach, entitling the employee to terminate the contract immediately. The relevant formulation of the implied term is that the employer must not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence. The apparent use of “and” in Malik was a transcriptional error, correctly identified in Baldwin.
3. The assessment is objective. The employer’s subconscious intention and the employee’s subjective perception are irrelevant. The Tribunal must examine the employer’s conduct as a whole and assess its cumulative effect. It must ask whether the conduct, judged reasonably and sensibly, was such that the employee could not reasonably be expected to put up with it.
4. The Tribunal was entitled to conclude that the Respondent’s generally supportive conduct, the available disciplinary and pastoral support, the limited evidence concerning alleged pupil assaults, and the handling of the Claimant’s return to work did not constitute repudiatory breach. The criticisms of cover work, failure to communicate an investigation email, limited availability of staff and other shortcomings were insufficient individually or cumulatively.
5. The Tribunal made sufficient findings of fact and adequately explained its conclusions. It was not required to determine every matter in dispute or recount all the evidence. The grievance-related matters could not materially support constructive dismissal where the Tribunal found that the Claimant had already decided to resign.

• Employment Tribunal, Birmingham: dismissed the claims for disability discrimination and constructive unfair dismissal in a decision sent on 8 October 2009.
• Employment Appeal Tribunal: dismissed the appeal on 28 May 2010.