Bloxwich Fencing Ltd v Banks

An appellate tribunal will not revisit an issue recorded by the Employment Tribunal as having been withdrawn, particularly where no application was made to correct that record. Any legal question dependent on the withdrawn issue is academic and need not be decided.

In assessing mitigation of loss after constructive dismissal, the tribunal must evaluate whether it was reasonable for the employee to return to the employer. A finding that return was unreasonable may be supported by a fundamental contractual breach, a breakdown in trust and confidence, deteriorating relations and the employer’s conduct, even where an offer of re-employment was made shortly after dismissal.

Mr Banks was employed by Bloxwich Fencing Ltd as a fencer. After the employer purported to lay him off without pay, the Employment Tribunal found that the employer had committed a fundamental breach of contract and that Mr Banks had been constructively and unfairly dismissed.

The Tribunal awarded compensation, including a 40 per cent uplift for non-compliance with the statutory dismissal procedure. It also rejected the employer’s argument that Mr Banks had failed to mitigate his loss by refusing an offer of continued employment.

On appeal, the employer challenged the Tribunal’s treatment of the statutory grievance requirements under Employment Act 2002, and its mitigation finding.

1. Statutory grievance issue. The Employment Tribunal recorded that the Respondent had withdrawn its objection concerning whether the grievance was raised in without prejudice correspondence. The EAT could not go behind that record. No review had been sought to correct it, and the Respondent had not obtained notes of evidence or agreed an alternative account. The arguments concerning whether a without prejudice letter could satisfy Employment Act 2002, section 32, and whether the subject matter of the grievance was sufficient, were therefore academic and were dismissed.
2. The EAT noted that, had the issue remained live, questions might have arisen under section 32(6)(b) and the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004. It expressly left the question whether a grievance could be raised in without prejudice correspondence for another case.
3. Mitigation of loss. The Tribunal was entitled to find that it was unreasonable for the Claimant to return to work. The constructive dismissal followed a fundamental breach going to the root of the employment contract and a breach of the duty of good faith. The breach occurred in the context of a deliberate attempt to use lay-off provisions to take advantage of economic conditions, together with a deterioration in relations and a mutual breakdown in trust and confidence.
4. The Tribunal’s assessment was plainly open to it. The fact that the offer of re-employment was made almost immediately did not require a different conclusion. The appeal was dismissed in its entirety.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s judgment entered on 5 August 2009.
• Employment Tribunal: found constructive and unfair dismissal and awarded compensation, including a statutory-procedure uplift.