EAT considers constructive dismissal
Tuesday 3rd September 2024
The EAT, in Nelson v Renfrewshire Council, held that an employee’s failure to participate in all stages of a multi-step grievance procedure was not relevant when considering whether she had been constructively dismissed.
Ms Nelson, a teacher, argued there was a repudiatory breach of the implied term of mutual trust and confidence arising from aggressive and intimidating behaviour by her headteacher and the way in which her grievance had been handled.
During the first stage of the procedure, witness evidence was ignored and the grievance was dismissed by the Education Manager. A stage two appeal hearing was chaired by the Head of Care and Criminal Justice, during which the Education Manager admitted a lack of impartiality, but this was ignored and the appeal was dismissed. Ms Nelson was advised of her right to a stage 3 appeal which would be heard by a panel of Council members rather than the local authority management team. Having completely lost faith in the process, she resigned with immediate effect and did not make a stage 3 appeal.
The ET considered that the headteacher’s behaviour was a one-off incident and not sufficient to amount to a breach of trust and confidence. Stage 1 of the grievance procedure was found by the ET to have been “inadequate and unfair” and was also “biased” against Ms Nelson and stage 2 did not correct these flaws. However, the ET considered that this did not reach the level of severity necessary to demonstrate a complete breakdown in the relationship of trust and confidence. Furthermore, Ms Nelson failed to complete the grievance procedure and the ET considered that there was a reasonable chance that stage 3 would have been independent and provided the opportunity for correcting the failures present in stage 1 and 2.
The EAT allowed the appeal. Ms Nelson’s claim failed because the ET had decided that the threshold for breach of the implied term of trust and confidence had not been met. However, in reaching this decision the ET made a clear link between her failure to follow all stages of the grievance procedure and the finding that the damage to the employment relationship was not sufficient to amount to amount to a breach. Referring to a previous EAT authority, the EAT allowed the appeal, holding that the only conduct to be considered when determining an issue as to constructive dismissal is that of the employer. The fact that Ms Nelson did not engage in stage 3 or that the outcome might have been more favourable was irrelevant. The case was remitted to the ET.
All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.