Devon & Somerset Fire & Rescue Service v Tilke

Constructive dismissal requires an objective assessment of whether the employer, without reasonable and proper cause, seriously damaged the relationship of trust and confidence. The tribunal must assess each alleged act separately and identify the conduct said to constitute the repudiatory breach. A final straw need not itself breach the contract, but it must objectively contribute, however slightly, to a cumulative breach; an entirely innocuous act cannot qualify. The tribunal must also decide whether the employee affirmed the contract by delaying resignation. A claimant’s continuing dissatisfaction or loss of trust is insufficient without these findings. Where the employer’s conduct has reasonable and proper cause, the constructive dismissal claim fails.

Mrs Tilke appealed to the Employment Appeal Tribunal after an Employment Tribunal found that she had been constructively and unfairly dismissed, while dismissing her discrimination, breach of contract and unpaid wages claims. She had resigned after prolonged disputes concerning emails circulated following the settlement of earlier discrimination proceedings, the handling of her grievances, and her return to work.

The Employment Tribunal treated the emails and subsequent grievance handling as cumulatively repudiatory, and identified refusal of reconsideration of a second-stage appeal as the last straw. The appeal concerned whether the tribunal had applied the correct tests for breach of trust and confidence, the last straw doctrine and affirmation, and whether it had adequately explained its conclusions.

The appeal was allowed on grounds 1, 2, 4 and 5. Grounds 3, 6 and 7 were dismissed. The case was remitted for rehearing before a fresh Employment Tribunal.

1. Trust and confidence. The tribunal had to ask whether the employer acted, objectively, without reasonable and proper cause in a manner calculated or likely seriously to damage the relationship of trust and confidence. Focusing solely on the employee’s reaction was insufficient. The employer was not required to uphold a grievance, provided it applied its procedures and reached a reasonable decision.
2. Separate acts. The two emails had to be considered separately. The Branch Secretary’s email was not an act carried out by or on behalf of the employer. The tribunal made no finding about what the employer should have done in response to its alleged misuse of the email system, and therefore could not treat that email as part of the employer’s breach.
3. Chief Fire Officer’s email. The tribunal’s characterisation of the email as telling staff that Mrs Tilke had made ill-founded allegations was unsupported by the email’s terms and the evidence. No material entitled the tribunal to make that finding.
4. Last straw. Applying London Borough of Waltham Forest v Folu Omilaju [2005] IRLR 35, the tribunal had to assess objectively whether the final act was wholly innocuous or capable of contributing to a cumulative breach. It failed to explain why refusal of a second-stage appeal was not innocuous, and that refusal was not identified as contributing to the alleged breach.
5. Affirmation. Under Western Excavating (ECC) Ltd v Sharp [1978] QB 761, an employee must act promptly after sufficiently serious conduct or may affirm the contract. The tribunal failed to consider whether Mrs Tilke’s delay of about 18 months after the emails, and about 12 months after withdrawing her first grievance appeal, amounted to affirmation.

• Employment Tribunal sitting at Exeter: found constructive unfair dismissal, while dismissing the discrimination, breach of contract and unpaid wages claims. The reserved judgment and reasons were sent on 11 May 2009.
• Employment Appeal Tribunal: allowed the appeal on grounds 1, 2, 4 and 5, dismissed grounds 3, 6 and 7, and remitted the case to a fresh Employment Tribunal.