Jen Nelson v Renfrewshire Council

An employee’s failure to pursue a further stage of an internal grievance procedure, and the possibility that it might have produced a favourable result, are irrelevant to whether the employer’s conduct had already amounted to a repudiatory breach of the implied term of mutual trust and confidence.

The question is objective: whether the conduct was likely to destroy or seriously damage trust and confidence without reasonable and proper cause. It is not whether the relationship was in fact destroyed or seriously damaged. The tribunal must assess the employer’s conduct cumulatively where several acts are relied upon.

The claimant, a teacher, resigned after an aggressive and intimidating incident involving her head teacher and the respondent’s handling of her grievance. The Employment Tribunal found that the incident, a biased and inadequate first-stage grievance process, and an inadequate second-stage process had damaged trust and confidence without reasonable and proper cause. It nevertheless dismissed her constructive unfair dismissal claim under section 95(1)(c) of the Employment Rights Act 1996, principally because she had not pursued a third grievance stage which might have resolved matters.

She appealed on perversity, legal error, cumulative breach, policy and adequacy-of-reasons grounds. The central issue was whether the tribunal had lawfully assessed repudiatory breach at the date of resignation.

1. Appeal allowed in part and remitted. The Employment Tribunal erred by treating the claimant’s failure to exhaust the third stage of the grievance procedure, and its possible beneficial outcome, as bearing on whether trust and confidence had already been sufficiently damaged at resignation. That was an irrelevant consideration: the correct approach was that in Tolson.
2. The tribunal correctly stated the Malik principle, but its repeated focus on whether trust and confidence had actually been damaged showed that it applied a different test. The inquiry is whether the employer’s conduct, objectively assessed, was likely to destroy or seriously damage the relationship, without reasonable and proper cause.
3. The tribunal also failed to decide whether the conduct found proved, considered cumulatively, itself amounted to a repudiatory breach. Its focus on the unexhausted third stage did not answer that question.
4. The conclusion was not perverse. The error concerning Buckland was a mistaken attribution of principle, but would not alone have undermined the decision. The tribunal had not elevated its grievance policy above the implied term, and its reasons were adequate.
5. The case was remitted to the same tribunal to determine, on the existing findings and without regard to failure to exhaust the grievance procedure, whether the established conduct individually or cumulatively constituted a repudiatory breach, applying the Malik principle.

• Employment Appeal Tribunal: Appeal allowed on grounds 2, 4 and 5. The constructive dismissal claim was remitted to the same tribunal.
• Employment Tribunal: On 24 May 2023, following an oral decision on 10 May 2023, dismissed the claimant’s constructive unfair dismissal claim under section 95(1)(c) of the Employment Rights Act 1996.