Costello v Gloucestershire County Council & Anor

Whether an employer has repudiated the implied term of trust and confidence is a fact-sensitive question for the Employment Tribunal. It must be decided objectively by assessing whether the employer's conduct, viewed as a whole where relevant, was likely seriously to damage trust and confidence.

The employer's subjective intentions or motives are irrelevant. The employee's actual reaction is relevant only insofar as it assists in assessing the likely effect of the conduct. A series of acts, including individually trivial acts, may cumulatively constitute a repudiatory breach, and a trivial act may be a final straw.

The Claimant resigned from her employment with Gloucestershire County Council after disputes with her line manager, an intended performance-management process, the handling of her grievance, and disclosure of a draft grievance document left on an unrelated file.

The Bristol Employment Tribunal dismissed her constructive unfair dismissal claim. Although it found aspects of the employer's conduct regrettable and unreasonable, it held that neither those matters individually nor cumulatively amounted to a repudiatory breach of the implied term of trust and confidence.

The Claimant appealed, contending that the Tribunal had adopted a subjective rather than objective approach and had overlooked relevant facts and the effect on her.

1. Appeal dismissed. The question whether conduct amounts to a repudiatory breach of the implied term of trust and confidence is a highly context-specific question of fact for the Employment Tribunal. The Appeal Tribunal found no error of law in the Tribunal's assessment.

2. The governing inquiry was objective. The employer's subjective motive or intention was irrelevant. The employee's actual response was not itself determinative, though it could assist the Tribunal in deciding the likely effect of the employer's conduct.

3. The Tribunal was entitled to find that comments made at the meeting, and comments later made by the line manager outside the Claimant's presence, did not objectively amount to a fundamental breach. Its findings concerning the Claimant's tendency to exaggerate were also available to it when assessing the evidence of her reaction.

4. The Tribunal had not overlooked the failures to notify the Claimant directly about performance management or the disclosure of the draft grievance. It had considered each matter and the cumulative case. In particular, it was entitled to find that the disclosure resulted from a simple error and that any consequential effect was attributable to colleagues' conduct rather than conduct of the employer.

5. Applying the cumulative-act principle in Lewis v Motorworld Garages Ltd [1985] IRLR 465, the Tribunal was entitled to conclude that the regrettable acts did not, viewed objectively and together, show an intention to abandon the employment contract. The grievance process remained open and offered a reasonable prospect of resolution.

• Employment Appeal Tribunal — dismissed the Claimant's appeal in [2015] UKEAT 0386_14_2602.
• Employment Tribunal, Bristol — dismissed the constructive unfair dismissal claim in a decision sent to the parties on 27 February 2014.