Canterbury College v Topliss

A constructive-dismissal claim requires an employment tribunal to determine whether the employer breached the implied term of trust and confidence by conduct calculated or likely to destroy or seriously damage that relationship. The statutory test for harassment is distinct and cannot replace that contractual inquiry.

A finding of constructive dismissal must rest on adequate and coherent findings of fact applying that test. A tribunal errs where it treats a hostile environment as continuing without factual support, or reaches conclusions inconsistent with its own findings. The issue must then be remitted where the appellate tribunal cannot safely make the necessary factual findings itself.

The Employment Tribunal upheld Mrs Topliss's complaint of unfair constructive dismissal, while finding that it lacked jurisdiction over her sex-related harassment claim. It had found that a colleague's conduct created an uncomfortable environment and that Canterbury College's decision to re-engage him continued that environment.

The College appealed. It contended that the Tribunal had confused the statutory harassment inquiry with the contractual test for constructive dismissal, made unsupported findings of continuing harassment, and reached internally inconsistent conclusions. The central issue was whether the Tribunal had made findings capable of establishing a repudiatory breach by the College.

1. Appeal allowed. The finding of unfair constructive dismissal was set aside and the unfair-dismissal issue was remitted to a freshly constituted Employment Tribunal.

2. Under section 95(1)(c) of the Employment Rights Act 1996, constructive dismissal depends on the employer's conduct. Applying Western Excavating Ltd v Sharp [1978] QB 761, the required question is whether the employer breached the implied term of trust and confidence by acting in a manner calculated or likely to destroy or seriously damage it.

3. The Employment Tribunal had identified Western Excavating, but had not applied its test. It had wrongly allowed the statutory harassment analysis under section 26 of the Equality Act 2010 to substitute for the separate contractual inquiry. The College was required to consider the employee's difficulties when deciding whether to re-engage her colleague, but it was not required to obtain her permission and was entitled to weigh its legitimate organisational interests.

4. The Tribunal's conclusion that harassment continued until 30 January lacked a proper factual foundation. Its conclusion was also perverse because it was unsupported by, and internally inconsistent with, its findings, including that the investigation and its outcome were reasonable.

5. The appeal tribunal also considered affirmation, which arises only if there was a contractual breach. The Tribunal had given insufficient reasons for finding no affirmation, but it was unnecessary to determine that issue. The existing findings did not permit the appeal tribunal to decide breach or affirmation itself. The remittal was confined to unfair dismissal and was directed to a new Tribunal.

• Employment Appeal Tribunal: Allowed Canterbury College's appeal, set aside the finding of unfair constructive dismissal, and remitted that issue to a fresh Employment Tribunal: [2014] UKEAT 0447_13_0104.
• Employment Tribunal (Ashford): Found Mrs Topliss unfairly constructively dismissed. It found it had no jurisdiction over her sex-related harassment claim. Written reasons were sent on 19 June 2013.