Five Elms Medical Practice v Hayes & Anor

An appellate tribunal may not overturn an Employment Tribunal’s finding of constructive dismissal merely because it would have reached a different conclusion. Whether conduct breached the implied term of mutual trust and confidence is a mixed question of law and fact, subject to intervention only for legal error or perversity.

The Malik test applies objectively to the question whether the employer, without reasonable and proper cause, acted in a manner likely to destroy or seriously damage trust and confidence. A breach of that term is fundamental. The range of reasonable responses test instead concerns the fairness of a dismissal under Employment Rights Act 1996, after constructive dismissal has been established.

Mrs Tilley, the assistant practice manager, resigned after the practice investigated complaints about her management style. She had no advance notice of a late meeting, was shown lengthy complaints only at that meeting, was not given copies, and her later informal grievance was not addressed before she resigned.

The Employment Tribunal upheld her claim for constructive unfair dismissal. It held that the cumulative manner of the investigation and the failure to address her grievance breached the implied term of mutual trust and confidence. The employer appealed only the finding relating to Mrs Tilley.

The central issue was whether that conclusion was legally impermissible or perverse.

1. Appeal dismissed. The Tribunal’s conclusion that the employer had fundamentally breached the implied term of mutual trust and confidence was a permissible conclusion on the facts found. There was no misdirection of law and the high threshold for perversity was not met.

2. The Tribunal correctly applied the objective formulation of the implied term in Malik. The employer’s conduct must be assessed for reasonable and proper cause when deciding whether there has been a constructive dismissal. A breach of the implied term is necessarily repudiatory or fundamental.

3. The employer’s reliance on the range of reasonable responses test was misplaced. As explained in Buckland, that test belongs to the later statutory fairness inquiry under section 98(4), once constructive dismissal and a potentially fair reason have been established. It does not replace the Malik test at the contractual-breach stage.

4. The Tribunal was entitled to assess the conduct cumulatively. Although investigating the complaints was necessary and an early informal meeting could be legitimate, the absence of notice, the late timing after a long working day, the presence of the legal adviser, the handling of the documents, and the failure to deal with Mrs Tilley’s grievance could objectively undermine trust and confidence.

5. The Employment Appeal Tribunal could not substitute its own view merely because it might have reached a different factual conclusion. The Tribunal was not required to refer to every item of evidence in order to give adequate reasons.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the finding that Mrs Tilley had been constructively unfairly dismissed.
• Employment Tribunal: by reserved judgment with reasons dated 13 February 2012, upheld Mrs Tilley’s constructive unfair dismissal claim; remedy was adjourned.