Barnes v London Borough of Lewisham

Constructive dismissal under Employment Rights Act 1996, section 95(1)(c), requires employer conduct amounting to a repudiatory breach, not merely unreasonable conduct. In a last-straw case, the final incident need not itself breach the contract, but the employer’s course of conduct, viewed as a whole, must be repudiatory. A tribunal’s failure to state an express concluding sentence does not invalidate its decision where its findings and reasoning clearly imply that conclusion.

An Employment Tribunal dismissed claims for detriment following a protected disclosure and constructive unfair dismissal. The claimant appealed to the Employment Appeal Tribunal, which dismissed the appeal. Permission to appeal to the Court of Appeal was granted only on whether the tribunal had adequately addressed the constructive dismissal claim. The issue arose because the tribunal’s short-form decision referred to dismissal of the unfair dismissal claim but did not expressly state that there had been no repudiatory breach.

Appeal dismissed. Bean LJ delivered the leading judgment. Christopher Clarke LJ agreed, and Macur LJ agreed with both judgments.

1. The statutory expression constructive dismissal is shorthand for a claim under section 95(1)(c) of the Employment Rights Act 1996. Where an employee resigns, the question is whether the employee was entitled to terminate without notice because of the employer’s conduct. Unreasonable conduct alone is insufficient. The conduct must amount to a repudiatory breach of contract. This reflected the principle in Western Excavating v Sharp [1978] ICR 221.
2. In a last-straw case, the final event causing resignation need not itself amount to a breach of contract, as explained in Meikle v Nottingham County Council [2005] ICR 1. However, the course of conduct leading to the final event must, taken as a whole, be repudiatory. It is insufficient that the employee perceived the conduct as unreasonable. The court treated this as the principle described in Lewis v Motorworld Garages Ltd [1986] ICR 157.
3. The tribunal had considered constructive dismissal. Its list of issues referred to the last straw, and its reasons set out the relevant statutory provision and authorities. The factual findings showed that the standard-setting procedure had ended satisfactorily, that subsequent monitoring was ordinary day-to-day management, and that contact from the director’s PA was routine. Those findings left no basis for a repudiatory breach.
4. The absence of an express sentence stating that there was no repudiatory breach did not make the tribunal’s decision inadequate. That conclusion was clearly implied by its comprehensive findings and reasoning. Clarke LJ described setting aside the decision for want of such a sentence as narrow formalism inconsistent with the substance of the decision. The tribunal was entitled to dismiss both claims.

• Court of Appeal (Civil Division) — On 18 May 2016, the appeal was dismissed. [2016] EWCA Civ 582
• Employment Appeal Tribunal — The appeal was dismissed after an initial rule 3(7) direction and an oral hearing on 12 February 2014.
• Employment Tribunal, London South — Judgment promulgated on 17 April 2013; the protected disclosure and unfair dismissal claims were dismissed.