Liddington v 2gether NHS Foundation Trust

In a constructive-dismissal claim based on a course of conduct and a final incident, the tribunal must assess the cumulative effect of the conduct. It is not necessary that every earlier incident, or the alleged last straw, should itself amount to a repudiatory breach.

At a Rule 3(10) stage, the question is only whether the proposed appeal discloses a reasonably arguable error of law. It does not determine the appeal’s ultimate merits. Grounds alleging an erroneous approach to the cumulative last-straw analysis, inappropriate questioning, failure to address the pleaded case, and insufficient written particulars were accordingly allowed to proceed in specified respects.

The claimant resigned after disciplinary proceedings concerning, among other matters, entries in her personal diary. She alleged constructive unfair dismissal, notice pay and a failure to provide written particulars following a TUPE transfer. The Employment Tribunal dismissed all claims in a judgment sent on 15 March 2016.

On a Rule 3(10) application under the Employment Appeal Tribunal Rules 1993, the claimant challenged the Tribunal’s treatment of her alleged final straw: the employer’s refusal to identify diary entries said to compromise confidentiality and its response to her concern about an alleged earlier email. She also raised grounds concerning judicial questioning, reasons, and Employment Rights Act 1996 section 4 particulars.

The central issue was whether any ground disclosed a reasonably arguable error of law warranting a full appeal hearing.

1. Application granted in part. The Appeal Tribunal held that grounds 7.1, 7.2, 7.3, 7.4, the confined part of ground 7.5(b), and ground 7.6(a) disclosed reasonably arguable errors of law and should proceed to a Full Hearing. The remaining grounds did not.

2. For a constructive-dismissal case founded on the implied term of trust and confidence, a tribunal must consider whether the course of conduct, including the alleged last straw, cumulatively amounts to a fundamental breach. It is not necessary to establish that each earlier act, or the last straw itself, was an independent repudiatory breach. The Employment Judge’s statement that the last-straw case failed because there were no previous repudiatory breaches was therefore arguably erroneous.

3. It was arguable that the Employment Judge had considered events only up to the disciplinary appeal, rather than the claimant’s case that the email of 11 July 2014 was the final refusal to address her concerns. It was also arguable that the Tribunal had failed to consider whether the employer’s handling of the diary allegation and of the disputed email, taken together, breached trust and confidence.

4. The Employment Judge’s questioning of the claimant was arguably inappropriate because it could both give an appearance of assistance to one party and reveal a misunderstanding of the claimant’s case. Evidence given in 2016 about whether the claimant had regarded events in 2013 and 2014 as contractual breaches was arguably irrelevant.

5. It was just arguable that Employment Rights Act 1996 section 4(8) required a transferee’s notification to state the date continuous employment began, rather than merely say that continuity would be preserved. By contrast, the asserted failure to provide revised particulars following a later role change was unarguable on the findings and evidence.

The ruling was confined to arguability. It gave no indication of the eventual outcome of the appeal.

• Employment Appeal Tribunal: On the Rule 3(10) application, held that specified grounds disclosed reasonably arguable errors of law and directed that they proceed to a Full Hearing.
• Employment Tribunal: Employment Judge Pirani, sitting alone, dismissed claims for constructive unfair dismissal, notice pay and written particulars in a judgment sent to the parties on 15 March 2016.