In Nelson v Renfrewshire Council [2024] EAT 132, the Employment Appeal Tribunal (EAT) held that the Employment Tribunal had wrongly taken into account the Claimant’s failure to appeal the outcome of her grievance when deciding whether or not the employer’s conduct amounted to a breach of the implied term of mutual trust and confidence.
Facts of the Case
The Claimant was employed by the Respondent as a Support for Learning teacher working at Linwood High School. During a discussion between the Claimant and the Head Teacher regarding a work-related issue, the Head Teacher allegedly said to the Claimant “If you’ve got something to say, say it to my face” in an angry tone. Following this incident, the Claimant lodged a grievance stating that she had been treated in a manner which was “threatening, insensitive and aggressive”.
The Claimant’s grievance was heard by Susan Bell of the Respondent who found that there was insufficient evidence to support the Claimant’s complaint, even though there were witnesses who corroborated the Claimant’s account of what was said. The Claimant appealed the grievance outcome and during the appeal process Susan Bell admitted to the appeal chair that she was not impartial. Despite this, the Claimant’s appeal was unsuccessful.
There was a further right of appeal under the Respondent’s grievance policy. However, by this stage the Claimant had lost faith in the process and so rather than lodging a further appeal she resigned with immediate effect, alleging that the Head Teacher’s behaviour towards her, and the manner in which her grievance had been handled, amounted to a repudiatory breach of the implied term of trust and confidence.
Employment Tribunal Decision
The Employment Tribunal dismissed the claim. It held that the Head Teacher’s behaviour was aggressive and intimidating and that there were serious issues with the grievance process, however, it found that the degree of damage to the relationship had not reached the level necessary to constitute a breach of the implied term. The basis for this finding was that 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, i.e. it considered there was still scope to repair the relationship. The Judge also stated as a reminder that “a breach of the implied term is not established simply by showing that the employer acted unreasonably”.
The Claimant appealed to the EAT.
EAT Decision
The Claimant appealed on a number of grounds but the main crux was that the Employment Tribunal had failed to properly assess the Respondent’s conduct at the point the Claimant resigned.
The EAT upheld the appeal. It held that the fact that the Claimant had not engaged with the third stage of the grievance procedure or that, had she done so, a favourable outcome might have been achieved, was an irrelevant consideration. It also confirmed that the conduct that should be considered when determining whether there had been a constructive unfair dismissal should be the conduct of the employer, not of the employee.
The EAT also held that the Employment Tribunal had erred in considering whether the conduct had actually damaged the relationship of trust and confidence. The correct test it should have applied was whether the conduct “is likely to damage trust and confidence”, not whether it actually did.
Comment
This Judgment serves as a useful reminder that for the purposes of a constructive dismissal claim, it is the employer’s conduct at the date of resignation which is key and an employee’s failure to process their complaint through their employer’s grievance procedure is not a relevant consideration. That said, we must not forget that the failure by an employee to exhaust the grievance process before bringing a constructive dismissal claim may lead to a reduction in the amount of compensation awarded to a successful claimant so it is relevant at the remedy stage.