Addenbrooke v Princess Alexandra Hospital NHS Trust

In a constructive-dismissal claim, a failure to follow a grievance procedure may amount to a fundamental breach of the implied term of trust and confidence, but that depends on the facts. Where such a breach is found, the tribunal must determine whether the employee affirmed the contract. If there was no affirmation, it must then decide whether the breach played a part in the resignation.

An earlier fundamental breach may be reactivated only by later conduct which contributes, with that breach, to the resignation. Whether the employee affirmed the contract remains a question of fact; an inadequately handled grievance is not, as a matter of law, incapable of affirmation.

The Appellant, an orthoptist, resigned and claimed constructive unfair dismissal. She alleged, among other matters, that the Trust had inadequately investigated her grievance and had failed to communicate its outcome.

The Employment Tribunal dismissed the claim. Its reasons stated that the grievance had not been dealt with adequately and suggested that the Trust would have been in difficulty had the Appellant resigned because of that failure. Elsewhere, however, it found that the matters relied upon did not cumulatively amount to a fundamental breach. It also found that a later letter proposing a return to work with a warning was an innocuous act and not a last straw.

The appeal concerned whether the Tribunal's reasons were internally inconsistent, whether affirmation had been determined, and whether the alleged breach played a part in the resignation.

1. Appeal allowed and remitted to the same Employment Tribunal. The Tribunal's reasons contained an unresolved contradiction. Paragraph 76 naturally appeared to find that the inadequate handling of the grievance, including the failure to communicate its outcome, was a repudiatory breach. Its later reasoning appeared to proceed on the basis that no breach was repudiatory.

2. That lack of clarity was an error of law. A tribunal must analyse whether the conduct was a contractual breach, whether it was fundamental, and whether the employee affirmed the contract. A failure to follow a grievance procedure is capable of being a fundamental breach, although the answer is fact-sensitive.

3. If the Tribunal had found a fundamental breach, it had not made sufficient findings on affirmation. Affirmation could not be inferred simply from the Appellant's continued employment. The relevant factual question included whether she had elected to continue despite the unresolved grievance, or was awaiting its outcome.

4. If there was no affirmation, the Tribunal must decide whether the grievance breach played a part in the decision to resign. It need not have been the sole cause.

5. The Appellant's contention that the grievance breach was necessarily continuing and incapable of affirmation was rejected. Whether a contract has been affirmed is a question of fact.

6. The Tribunal was entitled to find that the letter of 19 October 2012 was innocuous and incapable of being a last straw. Following an affirmed fundamental breach, later conduct must contribute with the earlier breach and the combination must play a part in the resignation. The perversity challenge and the separate challenge concerning the Tribunal's approach to minor pay discrepancies failed.

7. Applying proportionality considerations on remittal, the case was returned to the same Tribunal. It needed to clarify whether it had found a fundamental breach and, if so, determine affirmation and causation.

• Employment Appeal Tribunal: appeal allowed and the constructive-dismissal claim remitted to the same Employment Tribunal: [2014] UKEAT 0265_14_0212.
• Employment Tribunal: dismissed the Appellant's claim of constructive unfair dismissal.