British Airways Plc v Higgins

Where an employee establishes a constructive dismissal, the tribunal must determine whether the employer committed a repudiatory breach and whether the employee accepted that breach by resigning. That inquiry does not entail applying the range of reasonable responses test to the employer’s conduct.

Whether a constructive dismissal was also unfair is a separate question. It must be determined where it is put in issue, but a tribunal need not conduct that exercise where the employer has conceded unfairness conditional on constructive dismissal.

An appellate party will not ordinarily be permitted to advance a new point without a good reason for not raising it below.

The claimant, an aircraft maintenance supervisor, was dismissed for gross misconduct following errors in engineering work. On internal appeal, dismissal was replaced by a final warning and demotion to mechanic, with substantial losses of status, pay and benefits. Following an unsuccessful further appeal, he resigned.

The Employment Tribunal held that the demotion breached the implied term of trust and confidence. It found a constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996, and an unfair dismissal under section 98(4), because the employer had conceded that any constructive dismissal would be unfair. It reduced compensation by 50% for contributory conduct.

The employer appealed, alleging that the Tribunal had erred concerning breach, perversity, unfairness, and the relevance of the range of reasonable responses test.

1. Appeal dismissed. The Employment Tribunal made no error of law in deciding the issues on the basis agreed by the parties.
2. The employer’s proposed contention that unfairness had not been conceded was a new point. It had not been identified in the Tribunal’s list of issues, was contrary to the Tribunal’s express record of the concession, and was not properly advanced in the grounds of appeal. The employer had neither sought review nor provided evidence from its representative below. There was no basis to permit the point to be raised for the first time on appeal.
3. In any event, the Tribunal was entitled to treat unfairness as conceded if constructive dismissal were established. A constructive dismissal may be fair or unfair, but the fairness inquiry under section 98(4) of the Employment Rights Act 1996 need only be undertaken where it is raised. Bournemouth University Higher Education Corporation v Buckland did not require a tribunal to decide that issue despite the parties’ agreement.
4. The Tribunal was entitled to find both that the demotion was a repudiatory breach of the implied term of trust and confidence and that the claimant had materially contributed to the situation. Its 50% contributory-conduct reduction did not make the finding of breach perverse. The employer’s perversity ground did not meet the high appellate threshold.
5. The suggested “reverse Hogg v Dover College” doctrine was also a new and meritless point. In constructive-dismissal claims, the tribunal decides whether the employer’s conduct breached the contract and whether the employee accepted that breach by resigning. It does not ask whether the employer’s conduct lay within a range of reasonable responses.

• Employment Appeal Tribunal: dismissed British Airways Plc’s appeal and upheld the Employment Tribunal’s finding of constructive and unfair dismissal.
• Employment Tribunal, Glasgow: held that the claimant had been constructively dismissed under section 95(1)(c) and unfairly dismissed under section 98(4) of the Employment Rights Act 1996; compensation was reduced by 50% for contributory conduct.