Price v Surrey County Council & Anor

A repudiatory breach of the implied term of trust and confidence is assessed objectively, from the perspective of a reasonable person in the position of the employee. The assessment must consider the circumstances known to both parties and is not made in a vacuum. A seriously misleading account of an internal investigation may constitute such a breach, even where the underlying conduct did not meet a technical definition of bullying. An employer’s subsequent appeal process does not cure an established repudiatory breach. For protected-disclosure claims, the relevant question is whether the detriment or dismissal was because the worker made the disclosure. A detrimental response to the disclosure, rather than the making of it, does not satisfy that causal requirement.

Mrs Price, an office assistant at Wood Street School, complained about the headteacher’s management style and alleged bullying. An investigation found serious management problems and staff distress, but concluded that the evidence did not establish bullying under the definition adopted. The grievance outcome nevertheless stated that there was no evidence substantiating her allegations, and the headteacher announced that she had been cleared.

Mrs Price resigned after an unsuccessful appeal and brought claims for detriment for making a protected disclosure and unfair constructive dismissal. The Employment Tribunal rejected the protected-disclosure claim but found that the misleading grievance outcome breached the implied term of trust and confidence and amounted to unfair constructive dismissal. Both sides appealed.

1. Cross-appeal dismissed. The Tribunal was entitled to find that the grievance letter seriously distorted the investigation’s conclusions. There was substantial evidence of staff distress and serious criticism of the headteacher’s management style, even though the investigators concluded that the conduct did not amount to bullying under the technical definition applied.
2. The objective assessment of repudiatory breach requires consideration of all the circumstances from the perspective of a reasonable person in the employee’s position. That assessment includes circumstances known to both parties, including the prolonged failure to address a workplace-wide problem and the employee’s personal circumstances. It is not subjective merely because the employee’s likely reaction is considered.
3. The headteacher’s subsequent statement that she had been fully cleared compounded the misleading effect of the grievance letter. The Tribunal was entitled to regard this as evidence of a serious breakdown in management’s willingness or ability to address the underlying problems. The Tribunal’s reasoning contained imperfections, but its conclusion was not perverse.
4. Following Buckland v Bournemouth University [2010] IRLR 445, it was common ground that an appeal process did not cure a repudiatory breach which had already occurred. Mrs Price had not affirmed the contract and resigned in response to the breach.
5. Protected disclosure appeal dismissed. Sections 47B and 103A of the Employment Rights Act 1996 focus on the making of the protected disclosure. The Tribunal found that the reason for the resignation and other actionable detriments was the authorities’ handling of the complaint, not the fact that Mrs Price had made it. The Tribunal’s order was affirmed.

• Employment Tribunal: rejected the protected-disclosure and detriment claims, but found unfair constructive dismissal under sections 94 and 98 of the Employment Rights Act 1996.
• Employment Appeal Tribunal: dismissed Mrs Price’s appeal and the respondents’ cross-appeal, and affirmed the Tribunal’s order.