The Leeds Dental Team Ltd v Rose

Constructive dismissal is determined by asking objectively whether the employer, without reasonable and proper cause, conducted itself in a manner likely to destroy or seriously damage the relationship of trust and confidence. The employer’s subjective intention is irrelevant. The objective assessment may take account of all circumstances, including matters bearing on the apparent intention of the contract-breaker.

A tribunal need not hold an investigatory meeting in every disciplinary case. Whether such a meeting was required depends on the circumstances. A finding that the employer’s disciplinary conduct cumulatively amounted to a repudiatory breach was a factual conclusion, and the high threshold for perversity had not been met.

Mrs Rose, a long-serving practice manager, resigned after disciplinary proceedings were commenced concerning the recording of a colleague’s sickness absence and related matters. The Employment Tribunal found that the employer had breached the implied term of trust and confidence through the handling of the process, including refusing her chosen companion, failing to conduct an adequate investigation, threatening non-payment if she did not attend, and withholding relevant evidence.

Her unfair dismissal claim succeeded. The employer appealed, arguing that Tullett Prebon required a finding of the employer’s subjective intention and that the tribunal’s conclusions were perverse. The central issues were the correct test for constructive dismissal and whether the tribunal’s factual conclusions were legally or evidentially unsustainable.

1. Appeal dismissed. The tribunal’s finding that Mrs Rose had been constructively dismissed, and the consequent unfair dismissal finding, stood.
2. The decision in Tullett Prebon PLC v BGC Brokers did not change the established law. Properly read, it reinforced the objective approach developed in Woods, Lewis and Malik. The question is whether the employer’s conduct, viewed objectively and in all the circumstances, was likely to destroy or seriously damage the relationship of trust and confidence. The tribunal need not make a finding about the employer’s actual or subjective intention.
3. In a repudiatory-breach case, intention may be assessed objectively where it throws light on how the conduct would appear to a reasonable person in the employee’s position. That does not make the employer’s private motive relevant.
4. The tribunal was entitled to find that an investigatory interview was required in the circumstances. The relevant guidance did not impose such an interview in every case, but the employee should ordinarily have an opportunity to understand the allegations and explain apparent irregularities before disciplinary proceedings are pursued where the circumstances call for it.
5. The tribunal was entitled to regard the disciplinary letter, the refusal of the chosen companion, the threat of non-payment and the failure to disclose relevant material as cumulatively contributing to a breach of trust and confidence. The conclusion was highly context-specific and was not perverse. Perversity required overwhelming demonstration, which was absent.

• Employment Tribunal: found constructive dismissal and upheld the unfair dismissal claim, awarding a basic award of £5,000 and a compensatory award of £4,205.35.
• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the tribunal’s conclusion.