Sheffield Black Drugs Service & Ors v Sheffield Black Drugs Service

In a constructive dismissal claim, the question is whether the employer’s conduct breached the implied Malik term of mutual trust and confidence. The tribunal must ask whether the employer, without reasonable and proper cause, conducted itself in a manner likely to destroy or seriously damage that relationship. The former “range of reasonable responses” approach is not the correct test. A tribunal’s use of that approach will not necessarily invalidate its decision if its factual findings necessarily establish the elements of the correct test. The “last straw” principle applies only where the final act forms part of a prior course of conduct amounting to a repudiatory breach. In a race discrimination claim, relevant background matters may contribute to a prima facie inference of racial grounds.

The Claimant, a Yemeni employee of a Sheffield charity, brought claims for constructive unfair dismissal and race discrimination after serious allegations made by a colleague were rejected. He alleged that the employer failed adequately to support him on returning to work and dealt improperly with his grievance.

The Employment Tribunal unanimously rejected the claims concerning the initiation of disciplinary proceedings and the alleged lack of support. By a lay-member majority, it upheld the claims concerning the handling of the grievance. The employer appealed that decision, and the Claimant cross-appealed against the finding that the support provided after his return was adequate.

The central issues were whether the employer’s conduct breached the implied term of trust and confidence and whether the handling of the grievance constituted less favourable treatment on racial grounds.

1. Cross-appeal dismissed. The Tribunal was entitled to find that the Claimant had received adequate support on returning to work. The assessment of whether support was sufficient was primarily factual and evaluative. The phased return, extended absence and opportunity for a one-to-one meeting provided a sufficient evidential basis for the Tribunal’s conclusion. The same finding defeated the alleged discrimination based on inadequate support.
2. The Tribunal had referred to the discredited “range of reasonable responses” approach in Abbey National Plc v Fairbrother and Claridge v Daler Rowney. The correct approach, identified in Buckland v Bournemouth University Higher Education Corporation, was the unvarnished Malik test: whether, without reasonable and proper cause, the employer conducted itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence. The misdirection was not fatal because the Tribunal’s finding that the conduct was outside the range of reasonable responses necessarily involved findings that there was no reasonable or proper cause and that the relationship had been seriously damaged.
3. The Tribunal’s reference to the “last straw” was technically incorrect. The principle explained in Omilaju v Waltham Forest London Borough Council applies where the final act, taken with an earlier course of conduct, forms part of a repudiatory breach. Here, the Tribunal had found no earlier contractual breach. The meeting on 14 June 2006 therefore had to constitute the breach itself, although its justification and impact could properly be assessed against the background of the earlier allegations and their consequences.
4. The Tribunal was entitled to find that the employer’s handling of the grievance was hostile and obstructive, that this breached the Malik term, and that the Claimant resigned in consequence. Its conclusion that the contract had not been affirmed during the intervening period was also open to it, given the apparent lack of progress in the grievance process.
5. The appeal against the findings of constructive unfair dismissal and direct race discrimination was dismissed. The Tribunal was entitled to rely on the contrasting treatment of the colleague’s grievance, the ban on speaking Arabic at work and the treatment of a white employee as background facts supporting a prima facie inference of racial grounds.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s findings of constructive unfair dismissal and race discrimination dismissed. Claimant’s cross-appeal concerning inadequate support also dismissed.
• Employment Tribunal: Claim of unfair dismissal and part of the race discrimination claim upheld; other race discrimination allegations dismissed. Judgment and written Reasons sent on 11 February 2009.