Procedural steps not taken by employee irrelevant to constructive dismissal claim

An employee’s failure to fully complete every step of an internal grievance process will not impact their right to claim constructive dismissal, according to the recent ruling by the Employment Appeal Tribunal (EAT) involving a local authority. Sharmin Chowdhury analyses the judgment.

In the case of Nelson v Renfrewshire Council, a teacher lodged a grievance against her headteacher, alleging aggressive and intimidating behaviour during a meeting and in a subsequent encounter. A witness had overheard the witness and was able to at least partially corroborate the claimant’s account. However, despite this, the grievance was dismissed at both its first and second stages of the grievance process. This led to the claimant losing faith in the process. She resigned with immediate effect, citing the mishandling of her grievance and a loss of trust in the system.

The claimant then claimed unfair constructive dismissal, arguing that the head teacher’s behaviour and the grievance process's handling amounted to a repudiatory breach of the implied term of mutual trust and confidence. The Employment Tribunal (ET) dismissed her claim. It found that whilst there were issues with the grievance process, the relationship of trust and confidence had not been irreparably damaged because:

• The headteacher's actions, whilst unacceptable, were out of character and took place as a one-off incident
• Whilst there were defects in the first two stages of the grievance procedure, these might have been corrected had the claimant proceeded to the third and final stage

The claimant appealed to the EAT.

EAT decision

The crux of the claimant's appeal was that the Tribunal had failed to properly assess the situation as at the point of the claimant's resignation. The claimant argued that the Tribunal had instead looked to hypothetical future events in reaching its decision. 

The EAT found that the Tribunal had been wrong to attach weight to the claimant's decision not to invoke the third stage of the respondent's grievance procedure when determining whether there had been a repudiatory breach of the implied term of mutual trust and confidence. In fact, the EAT confirmed that the fact that the claimant did not engage with the third stage of the grievance procedure, or that a different outcome could have been achieved had she done so, was irrelevant to the question of whether a fundamental breach of contract had already occurred. 

Learning points for employers

This decision acts as a practical reminder that it will be the employer's conduct alone that is taken into consideration in order to determine whether the employer has committed a fundamental breach of contract. In this case the employee resigned with immediate effect as soon as she lost faith in the grievance process. There was therefore also no question of her having affirmed the contract after the fundamental breach occurred.

Sharmin Chowdhury is a solicitor in VWV’s Employment team.