Drs Burton, McEvoy and Webb (A Partnership) v. Curry

Constructive dismissal requires a repudiatory breach of contract, not merely unreasonable conduct. The statutory inquiry has two stages: whether the employee was dismissed under section 95(1)(c) of the Employment Rights Act 1996, and whether that dismissal was unfair under section 98.

A breach of an express contractual term may be repudiatory even where the employer acted reasonably. Reasonableness is relevant to the implied term of trust and confidence and, separately, to the fairness of the dismissal. A tribunal may decline to make a Polkey deduction where the contingencies are insufficiently substantial. A failure to pursue the statutory grievance appeal required a 10 per cent reduction under section 31(2)(c) of the Employment Act 2002.

The respondent was employed as practice manager by the appellant GP partnership. The partnership proposed transferring his staff line-management responsibilities to his deputy. He resigned, alleging that a core contractual responsibility had been removed.

An Employment Tribunal found a constructive and unfair dismissal and awarded £61,995, assessing loss to the claimant’s contractual retirement age of 65. The partnership appealed on liability, the assessment of future loss, and the failure to apply the statutory grievance-procedure reduction. The central issues were whether the removal of responsibilities was repudiatory, whether a Polkey discount was required, and what reduction followed from the failure to appeal under the statutory grievance procedure.

1. Liability. The appeal on liability was dismissed. The Tribunal was entitled to find that the partnership had removed the claimant’s fundamental line-management responsibilities. That was a substantial departure from the job description and a repudiatory breach of an express contractual term.

2. The Tribunal’s reasoning wrongly treated breach of an express term and breach of the implied term of trust and confidence as cumulative questions. They are alternative bases of breach. A sufficiently serious breach of an express term is repudiatory however reasonable the employer’s conduct may have been. Reasonableness cannot cure that breach at the liability stage.

3. Where the Malik term is relied upon, the relevant inquiry is whether the employer acted without reasonable and proper cause in a manner calculated or likely seriously to damage trust and confidence. The “range of reasonable responses” test is not applicable to that liability question. Reasonableness remains relevant at the fairness stage under section 98, with appropriate modifications for constructive dismissal. The Tribunal had effectively answered that question in the claimant’s favour, despite expressing its reasoning imperfectly.

4. The Tribunal was entitled to conclude that the employer could have reduced the claimant’s workload by encouraging delegation while preserving his status and contractual management role. The Employment Appeal Tribunal would rarely interfere with that factual assessment.

5. Remedy. The appeal concerning future loss was dismissed. The Polkey principle does not require a tribunal to evaluate every contingency with precision. It was within the permissible range of judgment to conclude that there was no sufficiently substantial chance of an earlier fair termination, resignation, or stress-related departure to require a deduction.

6. The appeal concerning the statutory grievance procedure was allowed to a limited extent. The award of £61,995 was reduced by 10 per cent under section 31(2)(c) of the Employment Act 2002, producing a reduced award of £55,795.50.

• Employment Tribunal: found constructive and unfair dismissal and awarded £61,995.
• Employment Appeal Tribunal: dismissed the liability and future-loss appeals, but allowed the appeal on the statutory grievance-procedure reduction and reduced the award to £55,795.50.