Kennaugh v Jones (t/a Cheshire Tree Surgeons)

In a constructive dismissal claim, a series of incidents may be assessed cumulatively. Individual incidents, including the final incident, need not each amount to a breach of contract. The aggregated conduct must nevertheless amount to a fundamental or repudiatory breach.

Whether breaches are fundamental, and whether a tribunal's findings are perverse, are generally factual matters. An appellate challenge for perversity must meet a high threshold. A failure to pursue a grievance may prevent alleged failures in its handling from contributing to a cumulative fundamental-breach case.

The claimant appealed against the dismissal by an Employment Tribunal of his remaining claim for constructive unfair dismissal. He relied on underpayments of wages, alleged failures to deal with grievances, and asserted inconsistency with earlier findings.

At an earlier sift, HHJ David Richardson considered that no arguable perversity appeal arose. On a renewed Rule 3 application, the claimant contended that the Tribunal had failed to consider the cumulative or “last straw” effect of the incidents, had made perverse grievance findings, and had reached findings inconsistent with previous decisions.

1. The Rule 3(10) application and the underlying appeal were dismissed. The Employment Tribunal had considered the series of underpayments collectively. It found that, although there had been contractual breaches, they were not fundamental in the exceptional circumstances of the case.

2. The Tribunal had not overlooked the “last straw” principle. In a constructive dismissal case involving conduct over time, the individual incidents, including the final incident, may or may not each be contractual breaches. Their cumulative effect must, however, amount to a fundamental breach. The Tribunal’s references to “these breaches” showed that it had considered the string of underpayments and made a factual assessment that they were not fundamental.

3. The grievance ground had no reasonable prospect of success. The Tribunal was entitled to find that the claimant had failed to engage with repeated attempts to arrange a meeting. Its conclusion that the respondent was not culpable in the alleged grievance failures was not perverse. Those matters could not contribute to an aggregation of incidents establishing a fundamental breach.

4. The asserted inconsistency with earlier findings also failed. Applying the high threshold for perversity, the Tribunal’s findings about the parties’ relationship, the difficulties within it, and their respective responsibility were firmly grounded in fact. Even on the claimant’s account of earlier findings, the challenge did not approach that threshold.

• Employment Appeal Tribunal: the renewed Rule 3 application was dismissed and, with it, the underlying appeal: [2012] UKEAT 0224_11_1104.
• Employment Tribunal: dismissed the claimant’s remaining constructive unfair dismissal claim.