National Society for the Prevention of Cruelty to Children v Dear

Constructive dismissal requires a repudiatory breach of contract. Unreasonable employer conduct, without more, is insufficient. In a claim based on trust and confidence, the tribunal must identify the conduct, decide whether the employer had reasonable and proper cause, and then ask whether the conduct was calculated to destroy or seriously damage the relationship.

Monitoring requirements imposed to secure compliance with proper procedures are legitimate management instructions, not disciplinary punishment, particularly where public protection is involved. The reasonable range of responses test concerns the fairness stage under the Employment Rights Act 1996, not whether constructive dismissal has occurred.

The employee, an experienced social worker employed by a child-protection charity, resigned after receiving an oral warning and two monitoring requirements following failures to comply with call-recording and referral procedures.

The Employment Tribunal majority found that the monitoring requirements were an additional disciplinary sanction and that failures in handling the employee’s grievance, including failure to maintain the status quo, amounted to repudiatory breaches. The Employment Judge dissented.

The employer appealed against the liability judgment dated 13 October 2008 and the compensation judgment dated 19 February 2009. The central issues were whether the monitoring requirements and grievance handling objectively breached the implied term of trust and confidence.

1. The appeal was allowed. The finding of constructive dismissal could not stand, and the appeal on remedy therefore fell away.
2. The court applied the contractual test in Western Excavating (ECC) Ltd v Sharp: the employer must commit a significant breach going to the root of the contract, or show that it no longer intends to be bound by an essential term. Unreasonable conduct alone does not establish constructive dismissal.
3. For a claim based on the implied term of trust and confidence, the court accepted the three-stage approach in Abbey National plc v Fairbrother: identify the conduct; decide whether there was reasonable and proper cause; and, if not, decide whether the conduct was calculated to destroy or seriously damage trust and confidence.
4. The performance requirements were imposed to secure compliance with child-protection procedures. On the Tribunal’s findings, they were monitoring measures and legitimate management instructions, not punishment or a disciplinary sanction. The employer had reasonable and proper cause for imposing and maintaining them. Objectively, they could not amount to a repudiatory breach.
5. The Tribunal also erred in treating the grievance handling as repudiatory. The employee had not complained about the omitted informal meeting in his grievance, resignation letter or claim. In any event, he could proceed to the formal grievance stage. The employer also had reasonable and proper cause not to suspend the monitoring requirements while the grievance was pending.
6. The reasonable range of responses test was relevant to the statutory fairness stage, after dismissal and a potentially fair reason had been established, rather than to the contractual question whether the employer’s conduct was repudiatory.

• Employment Tribunal: By liability judgment dated 13 October 2008, the majority found constructive dismissal. By judgment dated 19 February 2009, compensation of £65,715 was awarded.
• Employment Appeal Tribunal: Allowed the employer’s appeal on liability. The appeal on remedy fell away.