Key Facts
- •Ms Jen Nelson, a teacher, resigned from Renfrewshire Council on 7 November 2022.
- •She claimed constructive unfair dismissal due to a repudiatory breach of the implied term of mutual trust and confidence.
- •The breach allegedly stemmed from aggressive and intimidating behavior by a head teacher and the inadequate handling of her grievance.
- •The Employment Tribunal (ET) dismissed her claim, finding the damage to trust and confidence insufficient for constructive dismissal.
- •The ET found the head teacher's behavior aggressive but a one-off incident, and while criticizing the grievance procedure's flaws, deemed the remaining stage could have resolved the issues.
Legal Principles
Constructive dismissal occurs when an employee terminates a contract due to the employer's conduct.
Employment Rights Act 1996, § 95(1)(c)
A repudiatory breach must go to the root of the contract or show the employer no longer intends to be bound by essential terms.
Western Excavating (ECC) Ltd v Sharp [1978] ICR 221, CA
Every contract implies a fundamental term of trust and confidence; a breach occurs if conduct objectively destroys or seriously damages this.
Malik v BCCI [1998] A.C.20
A repudiatory breach needn't be the sole reason for resignation; it needs only to be a factor.
Wright v North Ayrshire Council [2014] ICR 77, EAT
The test for a repudiatory breach is objective, not dependent on the employer's subjective intentions.
Leeds Dental Team v Rose [2014] ICR 94, EAT
An appellate tribunal should be slow to overturn a tribunal's application of correctly stated legal principles unless a different principle was clearly applied.
DPP Law Ltd v Greenberg [2021] EWCA Civ 672
An appellate tribunal should not uphold a decision with fundamental lacunae or errors in approach.
Anya v University of Oxford [2001] ICR 847 CA
Failure to exhaust internal grievance procedures is irrelevant when determining whether a repudiatory breach occurred.
Tolson v Governing body of Mixenden Community School [2003] I.R.L.R 842
An employer cannot cure a repudiatory breach after it has occurred.
Bournemouth University v Buckland [2010] I.R.L.R. 445
The test for a Malik breach is whether the conduct is objectively likely to destroy or seriously damage trust and confidence, not whether it actually did.
Malik v BCCI [1997] ICR 606 HL and Leeds Dental Team v Rose [2014] ICR 94, EAT
Outcomes
Appeal upheld in part.
The ET improperly considered the claimant's failure to exhaust the grievance procedure and misapplied the legal test for a breach of trust and confidence.
Remitted to the ET for reconsideration.
The ET should assess whether the employer's conduct, without considering the unexhausted grievance procedure, constitutes a repudiatory breach of the implied term of trust and confidence.