Sawar v SKF (UK) Ltd

An Employment Tribunal’s assessment of whether conduct breaches the implied term of trust and confidence must be made objectively and in context. Conduct that would ordinarily amount to a repudiatory breach, such as publicly reprimanding an employee, may not do so in every case. The appellate question is whether the Tribunal’s conclusion was wholly impermissible, not whether the appeal court would have reached the same result. A Tribunal must give sufficient reasons to explain its decision and enable review, but need not address every point at equal length or draft its decision like a statute. Where the Tribunal considered the course of conduct as a whole and evaluated the employer’s failings in context, its conclusion was not perverse.

The appellant, a senior employee, claimed constructive and unfair dismissal after disputes concerning a company car, a manager’s critical email circulated internally and externally, the handling of his grievance, an apology email circulated to the same recipients, and a tersely reasoned grievance appeal.

An Employment Tribunal at Bedford dismissed the claims in its decision of 11 February 2009. The employee appealed, contending that the Tribunal’s findings necessarily established a breach of the implied term of trust and confidence, and that it had failed adequately to address the content and circulation of the apology email. The central issue was whether the Tribunal’s conclusions were perverse or inadequately reasoned.

1. Appeal dismissed. The Employment Tribunal had applied the correct legal test, derived from Malik v Bank and Credit and Commerce International SA [1998] AC20, namely whether the employer, without reasonable and proper cause, acted in a manner intended or likely to damage the relationship of trust and confidence.
2. The assessment had to be made by considering the course of conduct as a whole and in its factual context. Although a public dressing-down of an employee before outsiders or junior employees would often, and perhaps usually, amount to a repudiatory breach, that conclusion was not automatic. Here, the manager had been required to provide an adequate apology, and the Tribunal was entitled to decide that the circulation of the apology did not necessarily compound the earlier failing.
3. The Tribunal had not ignored the argument concerning the apology email. Its findings, read as a whole, dealt with both the adequacy of the apology and its circulation. The Tribunal was entitled to deal with some aspects more tersely, provided its reasons fulfilled the functions of explaining why the case was won or lost, assisting the decision-maker to identify the relevant matters, and enabling appellate review.
4. The failure to give reasons for the grievance appeal was capable of criticism, but the Tribunal was not bound to treat it as a final straw. Its conclusion that the employer’s failings were insufficient, in context, to amount to a breach was one to which it was entitled to come. The appellate tribunal’s task was not to substitute its own assessment, but to determine whether the decision below was wholly impermissible. The unfair dismissal appeal failed on the same perversity ground.

• Employment Tribunal, Bedford: claims for constructive dismissal and racial discrimination dismissed on 11 February 2009. The contractual notice claim was withdrawn.
• Employment Appeal Tribunal: appeal dismissed; the Tribunal’s conclusions were not perverse.