Guy’s & St Thomas’ NHS Foundation Trust v Nizam Mamode

An Employment Tribunal must apply the repudiatory-breach test, and give adequate reasons for its application, to each alleged breach of the implied term of mutual trust and confidence and to any cumulative course of conduct. Findings that conduct was merely "wrong", "inappropriate" or "proven" do not sufficiently demonstrate application of that test.

The Tribunal must decide the case defined by the issues. It acts contrary to natural justice if it determines a materially wider case without giving the employer an opportunity to meet it. Reasons are also inadequate where they fail to engage with primary evidence material to an alleged last straw. Where such errors substantially affect the analysis, the appropriate course may be a de novo remittal to a different Employment Judge.

The claimant, a consultant transplant surgeon, resigned after the respondent restricted his paediatric practice, removed him from a clinical lead role, conducted disciplinary processes, and delayed mediation and his grievance. He brought a claim of constructive unfair dismissal.

The Employment Tribunal upheld the claim. It found seven alleged acts or omissions proved, held that each was individually repudiatory, and alternatively held that their cumulative effect was a fundamental breach. It treated the respondent’s letter raising additional concerns in December 2021 as the last straw.

The respondent appealed. It contended that the Employment Judge had misapplied the law, given inadequate reasons, widened the pleaded issues, and reached perverse conclusions. The central issue was whether the Tribunal’s constructive-dismissal analysis was legally sustainable.

1. Appeal allowed. Although the Employment Judge correctly directed himself on constructive dismissal, his analysis did not show that he had applied the correct test to the alleged individual repudiatory breaches. The repeated conclusions that allegations were “proven”, or that conduct was “wrong” or “inappropriate”, did not explain why the conduct was calculated or likely to destroy or seriously damage mutual trust and confidence. The conclusions at paragraphs 137 and 142 did not cure that deficiency.
2. The same error rendered unsafe the alternative cumulative-conduct analysis. A correct analysis of the asserted last straw did not make errors in assessing the preceding conduct immaterial. The Tribunal had to assess the whole course of conduct on the proper legal basis.
3. The Tribunal had also exceeded the issues it was required to decide. The issues concerned requiring the claimant to step down as clinical lead and restricting him from practice. The Tribunal instead criticised the manner and content of the respondent’s communications, including whether the steps were expressly described as neutral. That materially wider case had not been put to the respondent, amounting to a breach of natural justice.
4. The findings that the investigation was flawed were perverse and inadequately reasoned. The claimant had been able to address omitted matters at the disciplinary stage. Nor did a decision not to interview all proposed character witnesses necessarily establish a partial investigation, particularly when two proposed witnesses were later interviewed.
5. The last-straw finding was also inadequately reasoned. The Tribunal did not engage with the primary evidence that the additional concerns notified in December 2021 were not yet formal complaints and were still being explored.
6. Although the grounds concerning the duration of the restriction and delay in mediation failed, no findings could safely be preserved. Given the substantial defects and the risk of a second bite, the claim was remitted de novo to a different Employment Judge.

• Employment Appeal Tribunal: appeal allowed and the claim remitted de novo to a different Employment Judge, [2026] EAT 37.
• Employment Tribunal: Employment Judge Murdin upheld the claimant’s constructive unfair dismissal claim in a judgment sent to the parties on 19 June 2024.