The Governing Body Of Story Wood School And Children's Centre v Jones

Constructive dismissal depends on a fundamental contractual breach, not merely on unreasonable treatment. Where the alleged breach is the implied term of trust and confidence, the question is whether the employer, without reasonable and proper cause, acted in a way likely or intended seriously to damage that relationship.

An employment tribunal may need to assess for itself the employee's conduct in order to decide objectively whether the employer's response amounted to such a breach. Reasons need not address every argument, provided that they identify the material facts, applicable law and reasoning sufficiently to show why the claim succeeded or failed and to permit appellate review.

The claimant was the school's pastoral care manager and had child-protection responsibilities. After she raised safeguarding concerns about a former chair of governors with an external professional, the head teacher removed those responsibilities, began a disciplinary investigation and later suspended her. The claimant resigned and alleged constructive unfair dismissal.

The Birmingham Employment Tribunal upheld the claim. The governing body appealed, contending that the tribunal's strongly expressed language showed a loss of objectivity, that it had applied an unreasonableness test rather than the contractual test for constructive dismissal, that its reasons were inadequate, and that several findings were not open to it.

The central issue was whether the tribunal had permissibly found a repudiatory breach of the implied term of trust and confidence.

1. Appeal dismissed. Although the Employment Tribunal used language which was unnecessarily robust and risked creating an appearance of partiality, its findings were not attributable to a loss of objectivity. Its decision was subjected to particular scrutiny for that reason.

2. The tribunal had applied the correct contractual test for constructive dismissal. The question was whether the school had committed a fundamental breach of the implied term of trust and confidence, viewed objectively, and whether the claimant resigned in response without affirming the contract. Reasonableness was relevant to whether the conduct amounted to that breach; it was not a substitute test for constructive dismissal. The tribunal's references to unreasonable and disproportionate conduct were consistent with its finding that the conduct had seriously undermined trust and confidence.

3. The tribunal was entitled to form its own view of the claimant's safeguarding conduct. That assessment was necessary to determine whether the head teacher's response was likely or intended seriously to damage trust and confidence. This was not an impermissible substitution of the tribunal's view in a misconduct-dismissal case.

4. The reasons were adequate under Rule 30(6) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004. Read as a whole, they identified the material conduct: unjustified and hostile criticism for raising concerns; unjustified removal and public announcement of the removal of safeguarding duties; an unjustified disciplinary investigation; and unjustified suspension. The tribunal was not required to decide every additional allegation, including alleged inconsistent treatment, where its determination did not depend on it.

5. The challenged factual findings were open to the tribunal. In particular, it could find that the claimant was criticised principally for speaking to the external professional, that no confidentiality breach justified the measures taken, and that the head teacher's reaction supported an inference that she sought to marginalise the claimant after receiving the external professional's letter.

• Employment Appeal Tribunal: dismissed the governing body's appeal and upheld the finding of constructive unfair dismissal: [2013] UKEAT 0522_12_1107.
• Employment Tribunal (Birmingham): upheld the claimant's unfair dismissal claim on the basis that the school's conduct fundamentally undermined mutual trust and confidence.