CG GROUP LTD v GEORGINA YOUNG

The Employment Appeal Tribunal dismissed the employer's appeal against a finding of constructive unfair dismissal. The EAT confirmed that the legal test for constructive dismissal is objective and is assessed by reference to whether there was a material breach of contract (section 95(1)(c) ERA) and that issues of the employer's decision falling within a "band of reasonable responses" do not arise in that context. The tribunal's finding that a series of 26 acts by the employer after July 2017 cumulatively breached the implied term of trust and confidence was held to be open on the evidence. The appellant's challenge that the tribunal impermissibly relied on matters unknown to it or applied a subjective test was rejected. Separately, the appellant's allegation of factual findings without evidence (a perversity complaint) failed because the appellant did not comply with the EAT's case management order and thus could not put forward the required arguable basis for that ground.

Background and parties: The respondent, Ms Georgina Young, brought multiple claims to the Employment Tribunal including constructive unfair dismissal; the Employment Tribunal (Glasgow) found constructive unfair dismissal and awarded a basic and compensatory award totalling £55,406.85. The appellant, GC Group Limited, appealed to the Employment Appeal Tribunal on two principal grounds.

Nature of the appeal and relief sought: The appellant sought reversal of the tribunal's finding of constructive unfair dismissal and associated liability. The appeal raised (i) an allegation that the tribunal substituted its view for that of a reasonable employer (argued by the appellant as misapplication of the objective test and reliance on matters unknown to the employer), and (ii) an allegation that the tribunal made factual findings for which there was no evidential basis.

Issues framed:

• Whether the Employment Tribunal applied the correct objective test for constructive dismissal (Malik principle, and distinction from the "band of reasonable responses").
• Whether the tribunal took into account matters unknown to the employer (for example, the claimant's subjective feelings expressed in contemporaneous e-mails or mental health information) or applied a subjective standard.
• Whether there were findings of fact for which there was no evidence, and if so whether those amounted to perversity requiring referral or reversal.

Court's reasoning and conclusions: The EAT reviewed the tribunal's detailed reasons and concluded that the tribunal correctly self-directed on the objective law applicable to constructive dismissal, including reference to Malik v BCCI and relevant authorities. The tribunal identified 26 acts said to amount cumulatively to a fundamental breach of the implied term of trust and confidence, the majority occurring on or after 14 July 2017 when the employer had notice of the claimant's fit note indicating reactive depression. The EAT found no basis to conclude the tribunal relied impermissibly on matters unknown to the employer or applied a subjective test. On the second ground, the EAT emphasised the appellant's failure to comply with the EAT's Full Hearing Order of 6 October 2021 which required advance identification and agreement about evidential matters that could not be derived from the written reasons; that failure meant the appellant could not properly advance a perversity argument. The EAT declined to remit the case for clarification (a Burns/Barke remit) as unnecessary and concluded the alleged points were peripheral to the tribunal's core conclusion. The appeal was therefore dismissed.

The appeal is dismissed. The Employment Appeal Tribunal held that the Employment Tribunal applied the correct objective test for constructive dismissal, that its finding of a cumulative breach of the implied term of trust and confidence based on 26 acts was open on the evidence, and that the appellant's perversity complaint failed because the appellant did not comply with the EAT's case management order and could not substantiate that there was no evidential basis for the tribunal's findings.

Appeal to the Employment Appeal Tribunal from a Judgment of the Employment Tribunal (Glasgow) dated 20 April 2021. Neutral citation for the EAT appeal: [2022] EAT 40. The Employment Tribunal had heard a multi-day case and found constructive unfair dismissal; that finding (and award) was the subject of this appeal.