Jen Nelson v Renfrewshire Council

The claimant appealed an Employment Tribunal dismissal of her claim for constructive unfair dismissal under section 95(1)(c) of the Employment Rights Act 1996. The Employment Appeal Tribunal upheld the appeal in part. The EAT held that the ET had correctly recorded many factual findings in the claimant's favour (including that the head teacher acted aggressively and that the stage 1 grievance was biased and of poor quality) but erred in law by taking into account the claimant's failure to exhaust the stage 3 grievance procedure when deciding whether the implied term of mutual trust and confidence had been repudiated. The ET also misapplied the Malik objective test (assessing whether conduct was likely to destroy or seriously damage trust and confidence) and failed to address expressly the cumulative effect of the employer's conduct. The appeal was allowed in respect of those errors and the matter was remitted to the same Tribunal for reconsideration without regard to the claimant's failure to exhaust the grievance procedure and applying the correct Malik test.

Background and parties: The claimant, a teacher employed by the respondent local authority, resigned on 7 November 2022 and brought a claim for constructive unfair dismissal arising from conduct by a head teacher on 7 October 2021 and the manner in which the respondent handled the claimant's grievance. The ET dismissed the claim on 10 May 2023 (written reasons 24 May 2023). The claimant appealed to the EAT; a Full Hearing was allowed by order of HHJ Shanks dated 15 August 2023 and heard on 18 June 2024.

Nature of the claim and relief sought: A declaration that the claimant was constructively dismissed and therefore unfairly dismissed under section 95(1)(c) ERA 1996; remedy to be determined if liability established.

Issues framed:

• Whether the ET's dismissal of the claim was perverse on the facts found;
• Whether the ET wrongly applied legal principles, in particular by taking into account the claimant's failure to exhaust the stage 3 grievance procedure (Tolson point), by misapplying the Malik objective test, and by failing to assess the cumulative effect of employer conduct;
• Whether the ET's reasoning was inadequate (Meek compliance).

Court's reasoning and conclusions: The EAT concluded that the perversity challenge failed because the Tribunal's overall conclusion was a decision within bounds of reasonable outcomes on the facts found. However, the ET had erred in law by treating the claimant's failure to pursue a stage 3 grievance as a relevant factor in assessing whether there had been a repudiatory breach, contrary to Tolson. The ET also used language suggesting it assessed whether trust and confidence had in fact been destroyed rather than whether the employer's conduct was objectively likely to do so, thereby misapplying the Malik principle; that misapplication amounted to an error of law. The ET had also not properly addressed whether the various failings, taken cumulatively, amounted to a repudiatory breach. The Buckland mis‑attribution by the ET was identified but treated as not in itself fatal. Ground alleging elevation of internal policy over the implied term and the Meek compliance complaint were dismissed. The appeal was therefore allowed in part and the case remitted to the same Tribunal to reconsider liability (and thereafter remedy) without regard to the failure to exhaust the grievance procedure and applying the correct legal tests.

This was an appeal allowed in part. The EAT rejected the perversity challenge but found that the Employment Tribunal erred in law by treating the claimant's failure to exhaust the stage 3 grievance procedure as a relevant factor in assessing whether there had been a repudiatory breach; by misapplying the Malik objective test (assessing whether conduct was likely to destroy or seriously damage mutual trust and confidence); and by failing to address whether the employer's conduct was cumulatively repudiatory. The matter is remitted to the same Tribunal to reconsider liability and, if necessary, remedy, applying the correct legal principles and not having regard to the claimant's failure to pursue the stage 3 grievance.

Appeal from an Employment Tribunal judgment delivered orally on 10 May 2023 with written reasons dated 24 May 2023 (Employment Tribunal). Full Hearing in the Employment Appeal Tribunal permitted by order of HHJ Shanks dated 15 August 2023; EAT judgment [2024] EAT 132 (Case No: EA-2023-SCO-000063-JP) handed down 12 August 2024.