Working Men's Club And Institute Union Ltd v Balls

The unreasonable initiation or conduct of disciplinary proceedings may amount to a fundamental breach of the implied term of mutual trust and confidence, even if the proceedings produce no disciplinary sanction. Tribunals should be slow to reach that conclusion where an employer has a reasonable basis for investigating suspected misconduct. Formal proceedings alleging gross misconduct or dishonesty should not be commenced without an adequate evidential basis, and the process must be conducted reasonably. A claimant may resign in response to the employer’s cumulative conduct, including a final incident which forms part of a continuing course of unreasonable treatment.

An Employment Tribunal found that the respondent employer had constructively unfairly dismissed the claimant, a centre manager. The Tribunal criticised the initiation and conduct of disciplinary proceedings, including poorly expressed allegations, inadequate investigation, lack of notice of a meeting, and criticism of the claimant’s private travel. It concluded that the employer had fundamentally breached the implied term of mutual trust and confidence and that the claimant resigned in response.

The employer appealed, arguing that the Tribunal relied on matters outside the pleaded case, misapplied the duty of trust and confidence, and failed properly to address causation.

1. Appeal dismissed. Despite inadequacies in the Employment Tribunal’s reasoning, its core conclusions disclosed no error of law.
2. The unreasonable bringing of disciplinary proceedings, irrespective of their eventual outcome, is capable of breaching the implied duty of trust and confidence. Tribunals should nevertheless be slow to treat the initiation of an investigation as repudiatory, since employers may reasonably investigate allegations which later prove groundless. Reasonableness is a question of fact: Gogay v Hertfordshire County Council [2000] IRLR 703.
3. The Tribunal was entitled to find that the employer commenced proceedings alleging gross misconduct and dishonesty without an adequate basis; that the suspension letter gave no real or accurate account of most allegations and misleadingly suggested greater gravity; and that the investigation was conducted unreasonably by calling the claimant to a meeting without prior notice and criticising him for travelling to Paris.
4. Those findings were independently sufficient to justify a finding of fundamental breach. Other criticisms, including the wording concerning availability during normal working hours and the immediate refusal to recuse the investigating manager, were ill-founded, over-critical or inadequately reasoned, but did not undermine the surviving findings.
5. Although the Tribunal should have explained its causation conclusion more fully, the Appeal Tribunal could supply the deficiency. The claimant’s resignation was properly understood as a response to the cumulative history of unreasonable conduct, rather than solely to the investigating manager’s failure immediately to recuse herself. The claimant’s answers in cross-examination were relevant but not determinative when assessed against the overall probabilities and his evidence as a whole.
6. Criticisms emerging during the hearing may be admitted without formal amendment where they amplify or particularise the general case already advanced and cause no identified prejudice. The central criticisms here concerned the reasonableness of the disciplinary process as a whole.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal’s decision sent to the parties on 20 December 2010. The appeal was dismissed.