CG GROUP LTD v GEORGINA YOUNG

In a constructive-dismissal claim, whether the employer committed a fundamental breach of the implied term of trust and confidence is determined objectively. Where the employer's sole defence is that there was no dismissal, the tribunal does not apply the band of reasonable responses test under section 98 of the Employment Rights Act 1996.

An appeal alleging findings made without evidence is, in substance, a perversity challenge. The appellant must provide an arguable evidential basis for that allegation and comply with applicable case-management directions. A challenge to peripheral findings will not justify interference where sufficient evidence supports the findings material to the tribunal's conclusion.

The Employment Tribunal at Glasgow upheld Ms Young's claim for constructive unfair dismissal. It found that a series of 26 failures in the employer's handling of her concerns and grievance amounted cumulatively to a fundamental breach of the implied term of trust and confidence. It awarded £55,406.85. Her other claims were dismissed and were not challenged.

GC Group Ltd appealed the liability finding. It contended that the Tribunal had substituted its own view for that of a reasonable employer, relied on matters unknown to it, and made factual findings without evidence. The central questions were whether the Tribunal had applied the correct objective test for constructive dismissal and whether the employer could sustain a perversity challenge without the necessary evidential material.

1. Appeal dismissed. The Tribunal made no error of law in upholding the constructive-unfair-dismissal claim.

2. The alleged substitution ground misunderstood the issue before the Tribunal. The band of reasonable responses applies when assessing the fairness of an employer-initiated dismissal under sections 98(2) and 98(4) of the Employment Rights Act 1996. It did not arise where the employer denied that there had been any constructive dismissal and did not advance an alternative case that a constructive dismissal was fair.

3. Under section 95(1)(c), constructive dismissal depends objectively on whether there was a material contractual breach. The question whether the employer had reasonable and proper cause for conduct alleged to breach the implied term of trust and confidence is also objective. The Tribunal had correctly directed itself on that test. Its reasons did not show that it had treated the claimant's uncommunicated subjective feelings, or health information not then known to the employer, as determinative.

4. The Tribunal was entitled to find that the 26 identified failures, principally in handling concerns and a grievance after the employer had been notified of depression, cumulatively amounted to a fundamental breach. The claimant resigned in response to that breach.

5. The second ground was an unsupported perversity challenge. The employer had not complied with the Full Hearing Order requiring steps to identify and agree, or seek clarification of, evidence needed for such a ground. Reliance on selected employer evidence and an ex parte assertion that no contrary evidence existed could not establish that there was no evidence for the findings. A Burns / Barke reference was neither appropriate nor useful, particularly as the challenged matters were peripheral and sufficient evidence supported the material findings.

• Employment Appeal Tribunal: Appeal dismissed: [2022] EAT 40.
• Employment Tribunal, Glasgow: Judgment dated 20 April 2021. The Tribunal upheld the constructive-unfair-dismissal claim and made an award of £55,406.85; other claims were dismissed.