McClung v The Royal Bank Of Scotland Plc

In a constructive-dismissal claim, the tribunal must determine whether the employer committed a fundamental breach of contract and whether the employee resigned at least partly in response to it. The description of an earlier event as a final straw does not prevent reliance on a later alleged repudiatory breach.

A tribunal errs in law if it fails to decide a material allegation that the manner of an investigation undermined the implied term of trust and confidence. A typographical error in stating the applicable test does not establish legal error where the reasons as a whole show that the tribunal understood the correct test.

The claimant appealed against an Employment Tribunal decision dismissing, among other claims, his complaint of unfair constructive dismissal. He alleged that, while he was on sick leave, the respondent investigated his dealings with a customer and indicated to that customer that the claimant may have acted wrongly. On learning of this, he resigned.

The Employment Tribunal concentrated on events in June 2011 and did not decide whether the manner of the later investigation breached the implied term of trust and confidence. Permission was granted on that restricted issue following a rule 3(10) hearing. The central issue was whether the Tribunal had failed to determine the constructive-dismissal case actually advanced.

1. Appeal allowed. The Employment Tribunal erred in law by failing to determine an essential part of the constructive-dismissal complaint: whether the respondent’s manner of investigating the claimant’s dealings with the customer, including what it said to the customer while the claimant was absent through illness, breached the implied term of trust and confidence.

2. The correct inquiry was whether the claimant resigned at least partly in response to a fundamental breach by the employer. The claimant’s earlier use of the expression final straw in an ET1 lodged before he had resigned could not mean that the June events were the final event causing his resignation. His later ET1 sufficiently identified the customer investigation as the event which allegedly destroyed his trust and confidence in the respondent.

3. The respondent was entitled to investigate genuine concerns. That did not answer the distinct issue whether the way in which it conducted the investigation was repudiatory. The Tribunal had made no finding on that issue, and the issue did not admit of only one answer.

4. The Tribunal’s substitution of employee for employer in a quotation of the constructive-dismissal test was a typing and proofreading error. Its reasons otherwise showed that it understood the applicable test, so that error was not material.

5. The case was remitted to a freshly constituted Employment Tribunal to hear the evidence and make findings anew on constructive unfair dismissal. No view was expressed on the merits.

• Employment Appeal Tribunal: allowed the appeal and remitted the unfair constructive-dismissal claim to a freshly constituted Employment Tribunal.
• Employment Tribunal: dismissed the claimant’s claims, including unfair dismissal. No citation is stated in the judgment.