Sandra Brooks v Brooks v Leisure Employment Services Ltd.
[2023] EAT 137
Jen Nelson v Renfrewshire Council
12 August 2024
[2024] EAT 132
Employment Appeal Tribunal
A teacher quit her job claiming her boss was mean and the school didn't handle her complaints properly. The first court said she shouldn't have quit before trying everything to fix the problems. The appeals court said that wasn't fair and sent the case back to be looked at again, focusing only on whether the boss's actions were bad enough to justify quitting.
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.