Jen Nelson v Renfrewshire Council

This matter came before me for a Full Hearing, allowed pursuant to an order of HHJ Shanks dated 15th August 2023. I shall refer to parties as the claimant and respondent as they were below.

The claimant is a teacher. She appeals against a decision of the Employment Tribunal (‘ET’), delivered orally by Employment Judge Whitcombe on 10th May 2023 and followed up with written reasons in a Judgment dated 24th May 2023. By that Judgment, EJ Whitcombe dismissed the claimant’s claim for constructive unfair dismissal pursuant to § 95(1)(c) of the Employment Rights Act 1996 (‘ERA’).

At the heart of her claim lies an assertion that there was a repudiatory breach of the implied term of mutual trust and confidence arising from behaviour towards the claimant by a head teacher employed by the respondent, and the manner in which the claimant’s grievance relating to that behaviour was handled by the respondent. The respondent did not seek to argue that any dismissal was fair, and arguments originally advanced that the claimant did not resign in response to the alleged breach of contract and that the claimant had affirmed the contract even if there had been a breach were abandoned during the course of the hearing before the ET.

The issues for determination are, in broad terms, three in number. Firstly, in light of the findings of fact made by the ET, whether its decision to dismiss the claim is perverse. The second issue is whether in any event the ET failed properly to apply established legal principles to the facts. There is an additional challenge to the decision on the basis that it is not Meek compliant, in other words that its’ reasoning in key respects is inadequate.

The claimant was formerly employed by the respondent as a teacher from 20 February 2012 until 7 November 2022, when she resigned with immediate effect. Latterly she worked at Linwood High School as a Support for Learning teacher.

The claim arises as a result of events during a 13-month period from 7th October 2021 until the claimant’s resignation on 7th November 2022. The initiating event or incident came about because the claimant felt that the Head Teacher had behaved in an aggressive and intimidating way towards her during discussion about a work-related issue on 7th October 2021, both in the Head Teacher’s office and in a stairwell after the meeting.

The Head Teacher’s voice was overheard by witnesses to be raised and described as having an ‘angry’ tone when she was speaking with the claimant in her office. The claimant was seen to leave the office looking visibly upset and was followed by the Head Teacher who said to her words to the effect of ‘If you’ve got something to say, say it to my face’ as well as ‘what we were discussing is confidential.’ The Head Teacher was pointing at the claimant as she did so.

These events caused the claimant to lodge a grievance. That grievance included the events described above, but was not limited to that event. It was alleged that the Head Teacher had treated the claimant in a way which was ‘threatening, insensitive and aggressive’ contrary to the respondent’s own ‘Respect at Work’ policy. An investigation was initiated. This would normally be carried out by the Head Teacher, but given her central role the process was instead initiated by Susan Bell, Education Manager. A stage 1 hearing was convened, which the claimant attended with her Union Representative. Susan Bell and an HR adviser also attended. No statements had been taken or provided by the respondents for the purposes of that hearing.

The outcome of the hearing is narrated in the judgment of the ET as follows:

The claimant appealed that outcome to a ‘Stage 2’ hearing. This was chaired by John Trainer, Head of Care and Criminal Justice for the respondents. The claimant attended with the same union representative as before. Susan Bell also joined the meeting via Microsoft Teams. The ET notes how that hearing unfolded as follows:

The stage 2 outcome letter reminded the claimant of her right to appeal to stage 3. Paragraph 1.4 of the respondents’ grievance procedure states that ‘employees will normally be expected to exhaust these grievance procedures if they wish to take their grievance to an employment tribunal.’ Stage 3 would be heard by a panel of council members rather than members of the local authority management team.

The claimant did not exercise her right to appeal to stage 3. She no longer had any faith in the system. She resigned with immediate effect by a letter dated 7th November 2022, citing a ‘serious material breach’ of contract and constructive dismissal. She referred to the evidence of first-hand witnesses being ignored; that Susan Bell had admitted she was not impartial and that John Trainer had ignored that admission. The claimant stated she had no option other than to resign.

On the question of the failure to exhaust stage 3, the ET found at paragraph [27] as follows:

The question of whether or not the ultimate disposal of this matter by the ET stands up to scrutiny having regard to the various findings made by it is central to this appeal. It is therefore necessary to record these in some detail. So far as the essential allegations are concerned, the ET found these proved, on the following basis:

On the question of the grievance procedure itself, the ET’s findings were as follows:

The ET then turned to the stage 2 of the grievance process and found as follows

The ET then addressed the question of stage 3 of the grievance process, with which the claimant had not engaged. The key aspects of its reasoning on this chapter were:

So far as relevant to the present case, § 95 ERA provides

It is for the claimant to satisfy the ET that she has been constructively dismissed in terms of § 95(1)(c). Otherwise, her employment is treated as having terminated as a result of resignation which is not treated as a dismissal.

The breach must be a significant one going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract; Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, CA.

There is implied into every contract the fundamental term of trust and confidence. It is a fundamental breach of contract for an employer to conduct itself in a manner which impinges on the relationship in a way in which, looked at objectively, is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer Malik v BCCI [1998] A.C.20.

Further, the repudiatory breach need not be the sole or even predominant reason for the resignation. It need only be one of the factors relied upon when resigning; Wright v North Ayrshire Council [2014] ICR 77, EAT. The test for whether there has been a repudiatory breach is an objective one that does not depend on the subjective intentions of the employer; Leeds Dental Team v Rose [2014] ICR 94, EAT.

Finally, the correct role for an appellate Tribunal such as this one is set out in DPP Law Ltd v Greenberg [2021] EWCA Civ 672:

The other side of that coin of course is that where an ET has fallen into error, the EAT’s role is not to find any way in which to uphold a decision where the reasoning reveals a fundamental lacuna or error of approach; as confirmed by Sedley LJ in Anya v University of Oxford [2001] ICR 847 CA:

For the claimant, Mr James advanced arguments under four headings, accepting that there was a degree of commonality and overlap between the seven grounds of appeal. The overarching criticism of the decision of the ET centred on the failure properly to assess the situation as it stood at the point of the claimant’s resignation; instead the ET impermissibly looked to hypothetical future events.

Mr James looked first at the arguments under the heading of perversity. He properly accepted that an appeal on grounds of perversity entails a high bar, however he submitted that given the egregious nature of the conduct and the findings in fact made by the ET that bar was cleared here. The claimant had been subjected to unprofessional aggressive and intimidating behaviour. There had been a concerted effort to brush off her complaints and exonerate the wrong doer. There had been two extremely flawed grievance procedures with superficial findings. At neither stage of the procedure had the claimant’s grievances been properly engaged with and at that point she had lost faith and resigned. The finding that the stage 1 procedure was actually biased was a significant finding and the grievance procedure as a whole had been a whitewash. Such circumstances were clearly likely to damage the relationship of trust and confidence between employer and employee and the failure of the ET to make such a finding was perverse.

Mr James then dealt with grounds of appeal 2, 5 and 6 together. The essence of these grounds, taken together, was that what might happen at some point in the future is not relevant and cannot trump that which has already taken place. So far as ground 2 was concerned, in taking into account the fact that the claimant had not completed all stages of the grievance procedure the ET had given weight to an irrelevant consideration. The only conduct to be considered when determining an issue as to constructive dismissal is that of the employer (Tolson v Governing body of Mixenden Community School [2003] I.R.L.R 842 paragraph 8). It was not the law that if someone chooses to lodge or pursue a grievance they are required to exhaust the process before any situation of breach of the implied term of trust and confidence could arise.

The fifth ground of appeal criticised the failure of the ET to consider whether the whole of the employer’s conduct could be regarded cumulatively as a repudiatory breach. Although the ET had considered separately the actions of the head teacher, Susan Bell and John Trainer and found each to be problematic, it had failed then to go on and consider whether the totality of the employer’s conduct amounted to a cumulative breach. This omission amounted to an error of law.

Ground 6 criticised the ET for elevating a term in the respondent’s internal policy above the implied term of trust and confidence. An employer is not entitled to rely on the literal letter of an internal policy to displace or damage the relationship of mutual trust and confidence (Stevens v University of Birmingham [2015] I.R.L.R. 899 at paragraphs 107 and 108). In other words, if conduct is sufficiently egregious it does not matter if a policy states that employees should normally exhaust the grievance process. If there has been a breach of the implied term, then that is a repudiatory breach and the contract would fall away. Although the ET did not make an explicit finding that the claimant required to exhaust the grievance process, the terms in which the ET made its findings at paragraphs [27] and [64] clearly suggest it thought the failure to do so was significant and weighed in its assessment of whether or not there had in fact been a breach of the implied term in this case.

Mr James summarised his position on this aspect of matters by submitting that the basic error was taking into account an irrelevant factor – the failure to exhaust the grievance procedure. Further, in concluding that a further stage in procedure might have resolved matters, the ET implicitly criticises the claimant for not following that through and affording the employer an opportunity to resolve the issues, and in so doing lessened the seriousness of what the employer had done. Rather the focus ought to have been on what had happened, and whether the conduct from the claimant’s perspective was sufficiently serious. It was implicit in the reasoning of the ET that a third stage might have resolved matters and if it had not, then there could be said to be a breach of the implied term. That approach ignored the fact that the conduct in question was the same conduct at all times, even with an additional stage of procedure. The same failings would still be present. To imply that the third stage might have resolved matters, or if not, that a breach would exist was not a principled distinction in a situation where there was a finite amount of conduct in question.

Mr James then turned to ground 3, described as the ‘Buckland’ ground. Mr James indicated that parties were in agreement as to the principles to be drawn from this case. The criticism here focussed on paragraph [38] of the judgment and what Mr James submitted was a misstatement of the principle to be drawn from Bournemouth University v Buckland [2010] I.R.L.R. 445. Under reference to that case, the ET stated

Mr James then dealt finally with ground 4. This related to an alleged misapplication of the Malik term (Malik v BCCI [1997] ICR 606 HL). Mr James accepted that the ET had set out correctly the proposition to be drawn from that case at paragraph [34] but the error arose in how the ET purported to apply the principle to the facts of the case. Properly analysed, the question was whether, looked at objectively, the conduct was calculated or likely to destroy or seriously damage the relationship of trust and confidence. Importantly, in a question of whether the conduct was likely to have that effect, it was not relevant whether it did in fact have that effect. Mr James set out, at paragraph 27 of his skeleton, 6 examples of where he argued it could be seen that the ET had applied a test of whether or not the conduct did, objectively, have the effect of destroying or damaging the relationship of trust and confidence and thus imposed a higher bar than the proper lower threshold of whether it was likely to have that effect (Leeds Dental Team v Rose (EAT) [2014] ICR 94, at paragraphs [25], [28]).

Mr James’ final ground of appeal was that in any event the reasoning of the ET was not Meek compliant. This argument was pressed rather less vigorously than the other grounds of appeal, and Mr James candidly accepted this ground was more of a ‘fall back’ argument in the event of the first six grounds not finding favour.

For all the reasons he advanced, Mr James invited me to uphold the claimant’s appeal. So far as disposal was concerned, he advised me that it was common ground between the parties that if the perversity ground succeeded then it would follow that a finding of unfair constructive dismissal should be made, there being only one correct answer in those circumstances. The matter should thereafter be remitted back to the ET for consideration of remedy. In the event that it was held that there was not a single right answer, then the matter ought to be remitted back to the same ET to reconsider with the benefit of directions, there being no issue with the primary facts found established.

Mr Briggs invited me to dismiss the appeal and uphold the judgment at first instance. He adopted his written skeleton and sought to amplify one or two aspects of that. So far as the allegation of perversity was concerned, Mr Briggs submitted that the ET had reached a conclusion on the facts found established that was within its’ discretion. This Tribunal should only interfere if it finds that the decision of the ET was one which one reasonable tribunal, properly directing itself on the law, could have reached (British Telecommunications plc v Sheridan; Tydeman v Oyster Yachts Limited [2022] EAT 115) . The Tribunal’s finding that the high threshold required for a breach of the implied term of trust and confidence had not been reached was one it was entitled to make.

Turning to the remaining grounds of appeal, Mr Briggs submitted that Tolson could be distinguished on the basis that the claimant in that case had not engaged with the grievance process at all whereas in the present case the claimant had put the grievance process at the heart of her case. It was therefore entirely appropriate to give consideration to the safeguards built into that process in considering whether the implied term had been breached. Tolson accordingly had no application to the circumstances of this case.

On the criticism made of the purported application of the Buckland principle, whilst Mr Briggs took no issue with the analysis of that case offered by Mr James, his position was that it could have no application unless this Tribunal was persuaded that the ET was in error in concluding that there had been no breach. In this case Buckland did not ‘bite’ as there had been no breach and therefore no attempt to cure any alleged breach. When pressed on the question of whether or not the ET was in error in attributing the principle set out in its’ judgment to the case of Buckland, Mr Brigg’s position ultimately was that the second sentence of paragraph [38] was ‘more of a general statement’; that it was correct in law as a matter of principle but was attributable to Assamoi.

Mr Briggs contended that the point taken in relation to the application of Malik had an element of semantics to it. Mr James had adopted an overly critical reading of the judgment and looked at fairly the ET had identified the test and correctly applied it. Its’ approach was not inconsistent with the Leeds Dental case.

Grounds 5 and 6 Mr Briggs submitted were without substance. Ground 6 sought to invite an inference to be drawn as to the weight given to the respondents’ policy from the mere mention of that policy in the judgment. He took no issue with the legal proposition that if policy was given precedence over the claimant’s rights in the case of a repudiatory breach that would be impermissible, but that was not what had occurred here.

A similar criticism could be made of ground 5 – the fact that the ET had not made explicit reference to the cumulative effect of the matters found proved did not mean that, on a fair reading, the ET had not in fact considered the accumulation of conduct in deciding whether the implied term had been breached.

So far as disposal was concerned, Mr Briggs agreed with the suggested disposal in the event that perversity were found in the judgment. In terms of the other grounds, in the event of a finding against the respondents on the Tolson point then the case ought to be remitted for the ET to determine whether, in the absence of a third stage grievance procedure it would have found the employers conduct reached the requisite threshold; similarly in the event of a finding against the respondents on the application of Malik, the matter ought to be remitted in order to consider the question of likelihood rather that what actually did or did not happen; and in the event of grounds 5 or 6 being upheld the matter ought to be remitted for reconsideration with appropriate directions.

In a brief response, Mr James rejected the contention that the Buckland point only arose if a finding of perversity were made. This was a standalone point. The ET did not make a finding of breach inter alia because it misunderstood Buckland. Had the ET properly understood Buckland it would not have had regard to the stage three process and the focus would have been on conduct at the point of resignation. This argument did not depend on the first ground of appeal succeeding.

This is a case in which most, if not all of the key findings in fact were made in favour of the claimant. Yet her claim failed because the ET ultimately concluded that the threshold for a repudiatory breach of contract on the basis of a breach of the implied term of trust and confidence had not been reached.

The claimant argues that this represents a perverse conclusion and that in any event the ET fell into error in a number of respects as set out above in its’ application of the law to the facts it found proved.

As is well understood, the threshold for perversity is a high one. An appeal on such a ground ought only to succeed where an ‘overwhelming’ case is made out that the ET reached a decision which no reasonable tribunal, on a proper appreciation on the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has “grave doubts” about the decision, it must proceed with great care (Yeboah v Crofton [2002] IRLR 634, per Mummery LJ at paragraphs 93-95). Despite the significant findings in the claimant’s favour, on a proper application of the relevant test, I cannot conclude that in proceeding nevertheless to dismiss the claim that high threshold has been reached or that ‘overwhelming’ case made out. It follows that the appeal so far as predicated on this ground is dismissed.

However, whilst fully recognising that the weight to be given to the facts found proved is entirely one for the ET to assess, there is force in the submission by Mr James that particular weight appears to have been accorded to the failure of the claimant to follow through all three stages of the grievance process as having significance in the assessment of whether or not, looked at objectively, a repudiatory breach had occurred. The relevant passages of the judgment on the ET in this regard are set out at paragraph [17] above. The correct approach is as explained in Tolson which is very similar to, indeed perhaps on all fours with, the present case. I do not accept the submission for the respondent that Tolson falls to be distinguished on the basis that the claimant herself complained about aspects of the grievance procedure, and thus put the grievance procedure at the heart of her claim, or that Tolson is applicable only where the claimant has failed to invoke the relevant grievance procedure at all. The respondent also argues in its skeleton that for Tolson to apply the ET would have to have made a specific finding that the claimant’s failure to avail herself of the third stage contributed to the breach in some way, and that there is no such finding.

It is correct to say that a finding in those precise terms is not made. However at paragraph [66] the ET concludes:

That can only be construed, as a matter of plain English, as an explicit link between the failure to exhaust the grievance process and a conclusion that the relationship had not been damaged to the extent necessary to found a claim for constructive dismissal. For the reasons already given, the fact that the claimant did not engage with the third stage of the grievance procedure or that, had she done so, a favourable outcome might have been achieved, is an irrelevant consideration in this context, and accordingly the appeal will be allowed in respect of the second ground of appeal.

Turning to ground 4, the alleged misapplication of the Malik term, the respondents’ position is that this, properly understood, does not identify an error of law but rather is an exercise in semantics. Mindful that an appellate Tribunal should be slow to conclude that the first instance Tribunal has not applied the correct legal principles where those have been correctly stated, and should only generally do so where it is clear from the language used that a different principle has been applied to the facts found (DPP Law Ltd v Greenberg), I observe that the ET correctly self directs on the Malik principle at paragraph [34], and also correctly sets out that the test for a repudiatory breach of contract is an objective one (Leeds Dental Team Ltd v Rose [2014] ICR 94. EAT).

Those observations are weighed in the balance with the six instances identified by the claimant and found in paragraphs [47], [52], [54], [60], [65] and [66] where the ET bears to make findings as to whether the relationship of trust and confidence had actually been damaged as opposed to whether, looked at objectively, the conduct is such that it would be likely to seriously damage or destroy the relationship of trust and confidence. With some hesitation, I conclude that the language used by the ET does indicate that a principle different from that correctly set out by it as encapsulating the proper approach has been employed. The issue is therefore more than mere semantics and in fact amounts to an error of law. I therefore also uphold the appeal on this basis.

Grounds 5 and 6 can be taken together. Ground 5 argues that the ET has failed to address whether, standing the findings made in relation to problematic conduct on behalf of a number of those involved in the grievance process, looked at cumulatively a repudiatory breach had occurred. Ground 6 suggests that in its’ approach to the failure to follow through on stage 3 of the grievance process, the ET has in effect impermissibly elevated the respondent’s policy above the implied terms of trust and confidence.

The respondent argues that the issue of cumulative breach is addressed in paragraphs [63] to [66] of the Judgment. On a fair reading, those passages focus on the failure to follow through with the third stage of the grievance process and the possible outcome had the claimant done so. I have already concluded that such focus led the ET impermissibly to take into account an irrelevant consideration. I also accept that this focus on the third stage of the grievance process means that the question of whether or not the conduct in question, looked at cumulatively, amounted in and of itself to a breach of the implied term has not been addressed, and that it ought to have been. Whilst this ground in isolation might not have been considered fatally to undermine the decision of the ET, it is bound up with the issue identified in the second ground of appeal to such an extent that I conclude that it does amount to an error of law.

The same cannot be said for ground 6. The proposition that the ET has in some way elevated the respondents’ policy above the implied term of trust and confidence reads too much into the passages identified, and is not consistent with a fair reading of the Judgment as a whole. Whilst errors of law can be seen in the approach of the ET to the question of the grievance procedure, such do not equate to an elevation of the policy over the implied term. The appeal on this ground is dismissed.

Finally, and for completeness, I dismiss the appeal so far as predicated on the proposition that the judgment is not Meek compliant. Although I consider that the ET has fallen into error in the particular areas identified above, these errors do not emerge from a lack of adequate reasoning, rather from a misapplication of the law to the facts found established.

The appeal has been upheld so far as the second, fourth and fifth grounds of appeal are concerned. It follows that those matters will be remitted to the Tribunal for reconsideration.

Parties did not take issue with any of the findings in fact. Unsurprisingly therefore, neither party suggested that the matter was required to be considered by a differently constituted Tribunal. I see no reason to depart from that agreed position.

I will therefore remit the matter to the same Tribunal to consider whether, in light of its findings in fact, and without having regard to the failure of the claimant to exhaust the grievance procedure, the conduct found established amounts, individually or cumulatively, to a repudiatory breach of the implied term of trust and confidence. In undertaking that exercise, the Tribunal should consider matters in light of the Malik principle, as correctly identified in paragraph 34 of the Judgment.