An employee’s failure to exhaust the employer’s grievance procedure was not relevant...
Constructive dismissal: relevance of employee's conduct
An employee’s failure to exhaust the employer’s grievance procedure was not relevant when considering whether the employer’s conduct amounted to a breach of the implied term of mutual trust and confidence, entitling the employee to resign and claim unfair constructive dismissal.
Background
Ms Nelson, a teacher, worked for Renfrewshire Council. In October 2021 a dispute arose and in November 2022 Ms Nelson resigned citing the behaviour of the head teacher and the handling of her grievance by the council as her reasons for her resignation. Ms Nelson claimed that the head teacher’s aggressive and intimidating behaviour, along with the inadequate handling of her grievance (which included ignoring eyewitness evidence and admission of bias in the process), constituted a repudiatory breach of the implied term of trust and confidence. There was a three-stage grievance procedure. The stage 1 grievance outcome dismissed her grievance stating that no evidence was found of the head teacher behaving in this way. Ms Nelson appealed to stage 2 which was again dismissed. She did not appeal to stage 3, the final stage of the grievance procedure, which would have been heard by a panel of council members and instead resigned.
Ms Nelson claimed unfair constructive dismissal. The tribunal 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 head teacher’s actions, whilst unacceptable, were out of character and took place as a one-off incident, and
- whilst there were defects in the first two stages of the grievance procedure, these might have been corrected had Ms Nelson proceeded to the third and final stage
Ms Nelson appealed to the EAT.
EAT decision
The appeal was allowed.
The essence of Ms Nelson’s appeal was that the tribunal had failed properly to assess the situation as at the point of her resignation - the tribunal had instead looked to hypothetical future events in reaching its decision.
The EAT held that the tribunal should have assessed the situation at the time of Ms Nelson’s resignation. It should not have speculated on hypothetical future events such as the potential outcome of a grievance appeal. The EAT emphasised that Ms Nelson’s failure to appeal the grievance outcome did not affect her right to claim constructive unfair dismissal.
The claim was sent back to the tribunal to consider whether, without having regard to the failure of Ms Nelson to exhaust the grievance procedure, the conduct found would have amounted to a repudiatory breach of the implied term of trust and confidence.
Comment
This decision re-emphasises that the only conduct to be considered in determining whether a constructive dismissal has occurred was that of the employer. An employee’s failure to exhaust the grievance process does not prevent them from claiming constructive dismissal if the employer’s conduct has already breached trust and confidence (although it could be relevant for the purposes of deciding what compensation should be awarded in the event of a successful claim). If the employer has committed a repudiatory breach of contract, then nothing more is needed.