Jen Nelson v Renfrewshire Council

Whether conduct amounts to a repudiatory breach of the implied term of mutual trust and confidence is assessed objectively. The tribunal must assess the likely effect of the employer’s proved conduct on a reasonable employee. It must not determine the issue by the employer’s uncommunicated subjective intention or the employee’s actual reaction.

Objective assessment may nevertheless support reasonable inferences about intention, including bias, bad faith, hostility or manipulation. Such inferences may assist in assessing the seriousness of the conduct. The adequacy and significance of a grievance process are context-specific. There is no general rule that a flawed process is less serious because the underlying incident is minor. Whether conduct entitled an employee to resign without notice is primarily a question of fact and degree for the tribunal.

The appellant, a support for learning teacher, resigned and claimed unfair dismissal on the basis that she had been constructively dismissed. The Employment Tribunal found inappropriate conduct by the headteacher and flaws, including first-stage bias, in the respondent’s grievance procedure. It nevertheless held that the conduct did not breach the implied term of mutual trust and confidence.

An earlier appeal was partly allowed and the matter was remitted: [2024] EAT 132. On reconsideration, the Employment Tribunal again held that there was no repudiatory breach and dismissed the claim. The appellant’s further appeal alleged that the tribunal had considered irrelevant matters, misdirected itself and overlooked relevant considerations.

1. Appeal refused. The Employment Tribunal made no error of law in concluding that the respondent’s conduct did not amount to a repudiatory breach and that the appellant had not been constructively dismissed.

2. Under section 95(1)(c) of the Employment Rights Act 1996, the question is whether the employer’s conduct was sufficiently serious to entitle the employee to terminate without notice. Where reliance is placed on the implied term of mutual trust and confidence, the tribunal must apply an objective test. It must consider whether the conduct was likely to destroy or seriously damage that relationship from the perspective of a reasonable employee.

3. The test does not turn on the employer’s actual subjective intention. However, evidence assessed objectively may reasonably permit inferences about intention. The Employment Tribunal was therefore entitled, when evaluating the gravity of the defective grievance process, to distinguish its inept and biased handling from deliberate manipulation or outright hostility. Those matters were not treated as a substitute for the objective test.

4. The Employment Tribunal’s observation that the seriousness of the original incident bore on the importance of the later grievance process did not create a general legal rule. The sufficiency and significance of a grievance procedure depend on the facts, including the nature of the complaint and what fairness requires. Read fairly and as a whole, the observation explained the tribunal’s fact-specific assessment.

5. The tribunal had considered the first-stage bias, the inadequate second stage and the employee’s distress. It was not legitimate to infer from the absence of express repetition in its second decision that those matters had been disregarded. The assessment of whether the cumulative conduct seriously damaged trust and confidence was one of fact and degree for the tribunal, whose conclusion was adequately reasoned.

• Employment Appeal Tribunal: This appeal was refused. The Employment Tribunal’s second decision dismissing the unfair-dismissal claim was upheld.

• Employment Appeal Tribunal: In [2024] EAT 132, an earlier appeal was partly upheld and the case was remitted to the Employment Tribunal to reconsider whether the conduct, individually or cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence.

• Employment Tribunal: In its decision sent on 22 November 2024, following remittal, it again found no breach of the implied term and dismissed the unfair-dismissal claim.