West Sussex County Council v Austin

Procedural unfairness in a disciplinary process may amount to a repudiatory breach of the implied term of mutual trust and confidence, and thereby found a constructive-unfair-dismissal claim. Where findings establish serious failures to follow procedure and a prejudged outcome, an Employment Tribunal may be bound to find constructive dismissal.

A finding of direct sex discrimination requires findings of fact capable of showing that a materially comparable person of the opposite sex would have been treated more favourably. Procedural irregularities and differential treatment alone do not justify that inference without a factual basis connecting them to sex.

The claimant, a male Head of Finance, resigned while disciplinary proceedings concerning an allegation of sexual harassment were pending. He claimed constructive unfair dismissal and direct sex discrimination. The Employment Tribunal upheld both claims, holding that procedural failures in the investigation and disciplinary process were discriminatory and caused his resignation.

The employer appealed. It contended that the Tribunal had no factual basis for its hypothetical comparator or for an inference that any treatment was because of sex. It further argued that, if the discrimination finding failed, the constructive-dismissal claim also failed because there had been no separate finding of repudiatory breach.

The central issues were whether the sex-discrimination finding could stand and whether the EAT could uphold constructive unfair dismissal on the Employment Tribunal's existing findings.

1. Appeal allowed in part. The finding of direct sex discrimination was set aside. The Employment Tribunal had made no findings of fact from which it could infer that a female manager with a background comparable to the claimant's, including previous allegations of sexual harassment, would have received different treatment.

2. Direct discrimination under Equality Act 2010, section 13 required a factual basis for concluding that the claimant's sex was the reason for the less favourable treatment. The Tribunal's procedural-irregularity findings did not, without more, establish that connection. Its conclusion concerning a hypothetical comparator was unexplained and could not stand.

3. The absence of a cross-appeal did not require dismissal of the constructive-dismissal claim. The claim had been advanced separately in the pleadings and was understood and contested as such. The Employment Tribunal's findings showed serious procedural unfairness: it failed to follow its own procedures, did not interview relevant witnesses requested by the claimant, and prejudged the disciplinary outcome by asserting loss of management trust before the allegations had been tested.

4. Those findings compelled the conclusion that the employer had fundamentally breached the implied term of mutual trust and confidence. A properly directed tribunal would therefore be bound to find constructive unfair dismissal. The case was remitted to the same Employment Tribunal to determine the appropriate remedy for that claim.

• Employment Appeal Tribunal: Allowed the employer's appeal insofar as it challenged the sex-discrimination finding, but upheld constructive unfair dismissal on the Employment Tribunal's findings and remitted remedy to the same Tribunal.
• Employment Tribunal: Held that the employer had unlawfully discriminated against the claimant because of sex and that his constructive-dismissal claim succeeded. It awarded £168,957.29.