Healy v Slough Borough Council

A tribunal hearing is unfair where a member is asleep, or repeatedly gives that appearance, during material evidence and a fair-minded and informed observer would see a real possibility that the fairness of the hearing was affected. A unanimous decision does not cure that defect.

In constructive dismissal, prior conduct may contribute to a cumulative repudiatory breach and need not be disregarded because the employee initially continued working. However, conduct with reasonable and proper cause cannot contribute to such a breach. If a fundamental breach is established, it need only be a material contributing cause of resignation; it need not be the sole or main cause. The existence of alternative employment does not itself defeat the claim.

The Claimant, formerly the Respondent's Head of Legal Services, resigned after the Respondent declined immediately to lift her suspension and withdraw disciplinary proceedings. She alleged that the refusal was the last straw in a wider course of conduct breaching the implied term of mutual trust and confidence.

The Employment Tribunal dismissed her claims for direct race discrimination, victimisation, protected-disclosure detriment, wages and constructive unfair dismissal. She appealed on the grounds that a lay member had been asleep during important cross-examination, and that the Tribunal had erred in its constructive-dismissal analysis.

The central issues were whether the hearing was procedurally unfair and whether the Tribunal had correctly assessed cumulative breach, causation and the significance of the Claimant obtaining other employment.

1. Appeal allowed. On the balance of probabilities, the lay member had repeatedly fallen asleep or dozed off for more than a moment, or at least repeatedly gave that appearance, during the cross-examination of the Claimant and a central Respondent witness. Applying Stansbury, the fair-minded and informed observer would conclude that there was a real possibility that the fairness of the hearing had been affected. The defect vitiated the whole unanimous decision.

2. The Employment Tribunal also erred in its analysis of constructive dismissal. The Claimant's indication that she would withdraw prior complaints if her suspension were lifted and the disciplinary process abandoned did not logically require the conclusion that she resigned solely because that request was refused. The Tribunal had to determine as a fact whether the earlier matters, together with the refusal, materially contributed to her resignation.

3. Conduct which is not itself a breach may be a last straw if it is not entirely trivial or innocuous. Prior conduct can be relied on cumulatively even if the employee previously continued working. But an episode for which the employer had reasonable and proper cause cannot contribute to a cumulative fundamental breach. The Tribunal had not clearly found whether a fundamental breach had already arisen before the July refusal, or whether any such breach had been affirmed.

4. A repudiatory breach need only be an effective or material contributing cause of resignation. It need not be the sole or predominant cause. The fact that the Claimant had secured alternative employment, and would not have resigned when she did without it, could indicate mixed reasons; it did not itself prevent a constructive dismissal. The Tribunal failed clearly to apply that inquiry.

5. The existence of a fundamental breach is assessed objectively. The Claimant's later application for a post with the Respondent could potentially cast evidential light on the earlier position, but the Tribunal did not explain how it supported its objective conclusion.

6. All live claims were remitted for a fresh hearing before a differently constituted Employment Tribunal.

• Employment Appeal Tribunal: Appeal allowed. The Employment Tribunal's decision was set aside in full and the live claims were remitted for a fresh hearing before a differently constituted tribunal.
• Employment Tribunal: Dismissed claims for direct race discrimination, victimisation, protected-disclosure detriment, unlawful deductions from wages and constructive unfair dismissal.