Daley v Serco Home Affairs Ltd & Ors

An Employment Appeal Tribunal should assess an employment tribunal’s reasons as a whole and should not subject them to unrealistically detailed scrutiny. Reasons are sufficient where they explain, in substance, why the parties won or lost and identify the issues vital to the outcome.

On a perversity appeal, intervention requires an overwhelming case that no reasonable tribunal could have reached the decision. Constructive dismissal requires a fundamental contractual breach, followed by resignation sufficiently promptly to avoid affirmation. A claimant who continues the employment for an unreasonable period may affirm the contract. The last-straw doctrine does not remove the need to establish a repudiatory breach.

The claimant appealed from the decision of the Employment Tribunal at London South, which dismissed claims of constructive unfair dismissal, race discrimination, victimisation, harassment and disability discrimination. The tribunal had considered approximately 30 allegations arising from the claimant’s employment by Serco and related respondents.

Permission for a full hearing was granted only in relation to constructive dismissal and four race-discrimination allegations: alleged participation in a false arrest, failure to pay sick pay, failure to progress a grievance, and denial of the existence of a VAR trip sheet. The central issues were whether the tribunal had given adequate reasons, whether its factual conclusions were perverse, and whether the claimant had established a fundamental breach of contract or discriminatory treatment.

1. Appeal dismissed. The Employment Tribunal had adequately identified the issues, made material findings of fact and explained why the claims failed.
2. In assessing reasons, the appellate tribunal must view the decision broadly and fairly. It is unnecessary for an employment tribunal to resolve every factual dispute or answer every argument advanced by counsel. The essential question is whether the reasons disclose why the parties won or lost and enable an appeal court to understand the decision.
3. A perversity appeal succeeds only where there is an overwhelming case that no reasonable tribunal, properly applying the evidence and law, could have reached the conclusion under challenge. The Employment Appeal Tribunal should respect factual findings and avoid a fine-toothcomb analysis.
4. For constructive dismissal, the claimant must establish a fundamental breach of contract, including a breach of the implied term of trust and confidence, and must resign in response to that breach. The claimant must make up his mind sufficiently promptly; continued employment may affirm the contract. Although the last-straw doctrine permits the final act to be insufficient by itself, the totality of the employer’s conduct must still amount to a repudiatory breach.
5. The tribunal was entitled to find that the claimant regarded the employment relationship as ended on 18 April 2006 but affirmed the contract by remaining employed for more than 15 months. In any event, no contractual breach, fundamental or otherwise, had been established.
6. The findings concerning the arrest, sick pay, grievance and trip sheet were open to the tribunal. There was no evidential basis for racial motivation, victimisation or a discriminatory conspiracy. The appeal therefore stood dismissed.

• Employment Tribunal at London South: Claims for constructive unfair dismissal, race discrimination, victimisation, harassment and disability discrimination dismissed; decision sent to the parties on 25 July 2008.
• Employment Appeal Tribunal: HHJ Ansell disposed of the appeal under rule 3(7) on 24 October 2008. Slade J allowed part of the claimant’s rule 3(10) application on 29 January 2009 and directed a full hearing on constructive dismissal and four race allegations. The appeal was dismissed on 7 January 2010.