Connaughton v Gillen

An employee claiming constructive dismissal must prove both a fundamental contractual breach and that the breach was the effective cause of resignation. A tribunal must make findings on the employee’s actual reasons for resigning. Delay may indicate affirmation of the contract, and serious credibility evidence, including fabricated documents, requires clear consideration.

A tribunal must remain impartial throughout the hearing. A case-management intervention before evidence is complete, which treats a disputed issue as fatal and pressures a party to settle or curtail evidence, may cause a fair-minded and informed observer to conclude that there is a real possibility of prejudgment.

The claimant, a long-serving medical receptionist, resigned after disciplinary and grievance processes conducted by her employer, a sole general practitioner. The Employment Tribunal at Glasgow upheld her constructive-unfair-dismissal claim and awarded £7,988.

The employer appealed. He challenged, among other matters, the Tribunal’s treatment of alleged contractual breaches, its findings on the cause of resignation, its handling of evidence concerning the claimant’s new employment, and apparent bias arising from a case-management discussion held before the evidence was complete.

The central issues were whether the proceedings gave rise to an appearance of prejudgment and whether the Tribunal had made findings capable of establishing that a fundamental breach of contract caused the claimant’s resignation.

1. Appeal allowed; claim dismissed. The Employment Tribunal’s conduct at the case-management discussion gave rise to a real possibility of apparent bias. Applying Porter v Magill [2002] 2AC 357, a fair-minded and informed observer would conclude that the Tribunal had prejudged the outcome.

2. The discussion was called before the evidence had concluded and to put pressure on the parties to settle. The Employment Judge treated an alleged concession concerning the disciplinary procedure as fatal, notwithstanding that it was disputed; pressed the employer to limit further witnesses; and made comments indicating impatience with evidence about an event which might ultimately have mattered. The reasonable impression was that the claimant would succeed and that the employer should settle.

3. In any event, the constructive-dismissal finding was perverse. The claimant bore the burden of proving that a material or fundamental breach of contract was the effective cause of her resignation. The Tribunal made no findings of fact about her actual reason for resigning. It also failed to address properly whether the delay following the disciplinary process indicated affirmation of the contract, consistently with Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 2.

4. The Tribunal had found that two letters concerning the claimant’s acceptance of another job had been fabricated in an attempt to mislead it. That finding was highly material to her credibility and to the reason for resignation. The Tribunal did not clearly explain why it nevertheless accepted her denial that the new job was the reason for her resignation. Its reasoning also relied on matters for which it had made no findings of fact.

5. The Tribunal also erred in refusing a witness order concerning information disclosed by the Citizens Advice Bureau. The relevant questions included the purpose for which the evidence was sought and whether any privilege had been waived by disclosure. Finally, although falsification of material documents was serious and required careful assessment of credibility, the EAT was not satisfied that an Employment Tribunal could dismiss the claim solely as a common-law abuse of process.

6. On the evidence and findings available, no tribunal could have been satisfied that a fundamental contractual breach was the effective cause of the claimant’s resignation. The claim was therefore dismissed rather than remitted.

• Employment Appeal Tribunal: appeal allowed. The Employment Tribunal’s judgment was set aside for apparent bias and perversity, and the claim was dismissed.
• Employment Tribunal at Glasgow: judgment registered on 6 June 2011. The Tribunal upheld the claimant’s constructive-unfair-dismissal claim and awarded £7,988.