Buzzacott LLP v Ellis

An employee may establish constructive dismissal where several acts, viewed cumulatively, amount to a fundamental breach of the implied term of mutual trust and confidence. An individual act need not itself justify resignation if it contributes materially to the cumulative breach. A grievance warning may be inappropriate where issued at an early informal stage without a finding of malicious conduct. Promotion should not be linked to an unrelated grievance without proper reason. An employer’s erroneous application of a long-term sickness policy, coupled with an implicit threat to continued employment, may contribute to such a breach regardless of the employer’s motive. A victimisation finding must identify the protected act, the detriment and the relevant comparator or evidential basis.

An Employment Tribunal found that Mrs Ellis had been constructively and unfairly dismissed by Buzzacott LLP and victimised. It dismissed her claim of direct sex discrimination by harassment. The constructive dismissal finding relied on three incidents: a warning that pursuing a grievance might lead to disciplinary proceedings, postponement of an expected promotion pending the grievance, and an inappropriate warning concerning the continuation of her employment during sickness absence.

The employer appealed the findings on constructive dismissal and victimisation. The central issues were whether the three matters could cumulatively amount to a fundamental breach of contract and whether the Tribunal had adequately explained its victimisation conclusion.

1. Constructive dismissal. The appeal against the constructive dismissal finding was dismissed. The Employment Tribunal was entitled to assess the three proved incidents cumulatively. The fact that only three of twelve complaints were established did not prevent them, taken together, from constituting a fundamental breach of the implied term of mutual trust and confidence.
2. The Tribunal was entitled to find that warning the employee, at the informal grievance stage, that continuing her grievance might result in disciplinary action was capable of contributing to the breach. The informal procedure was intended to resolve the matter quickly and did not require findings that the grievance was upheld, rejected or malicious. A warning at that stage was premature, although the Tribunal did not decide whether a warning might be appropriate after a formal process had established malicious allegations.
3. The Tribunal was entitled to find that postponing promotion pending an unrelated grievance contributed to the breach. The promotion and the grievance concerned separate matters, and the employer had no proper reason to make the promotion contingent on the grievance’s conclusion.
4. The sickness policy distinguished intermittent or short-term absence from a single period of long-term absence. The long-term procedure, including a warning that continued employment might be at risk, was intended for a continuous absence of three weeks or 15 working days, not merely an aggregate of intermittent absences over 12 months. Applying it after nine days’ current absence was therefore inappropriate. The seriousness of the communication and its likely impact on a reasonable employee mattered; the employer’s motivation was immaterial.
5. Victimisation. The appeal succeeded on this issue. The Tribunal had not identified which complaints constituted protected acts, nor explained the evidential basis for the alleged detriments or the comparator issue. The victimisation claim was remitted to the same Tribunal for reconsideration, with further evidence and argument if required. No conclusion was reached on the direct discrimination cross-appeal.

• Employment Appeal Tribunal: dismissed the appeal concerning constructive unfair dismissal; allowed the appeal concerning victimisation and remitted that issue to the same Employment Tribunal for rehearing. The direct sex discrimination issue was left undecided because it was unnecessary to determine.
• Employment Tribunal: found constructive unfair dismissal and victimisation, and dismissed the direct sex discrimination by harassment claim.