Dr Paul Leaney v Loughborough University
[2023] EAT 155
Sandra Brooks v Brooks v Leisure Employment Services Ltd.
8 November 2023
[2023] EAT 137
Employment Appeal Tribunal
An employee was unfairly removed from a work group. A judge agreed the employer acted wrongly, but also said the employee waited too long to quit. A higher court sent the case back to be looked at again because the first judge didn't consider that the employee was still trying to resolve the issue through the company's complaints process before quitting.
Key Facts
- •Ms Brooks (Claimant) worked for Leisure Employment Services Ltd (Respondent) from 1990.
- •In March 2020, she was removed from a WhatsApp group for a home-working team without explanation after raising concerns about pay during the COVID-19 lockdown.
- •She submitted a grievance alleging discrimination and breach of trust and confidence.
- •She resigned on 25 June 2020, claiming constructive dismissal due to the breach of trust and confidence.
- •The Employment Tribunal found a breach of the implied term of mutual trust and confidence but also that the Claimant had affirmed her contract before resigning.
Legal Principles
Breach of the implied term of mutual trust and confidence
Woods v WM Car Services (Peterborough) Ltd [1983] IRLR 413
Affirmation of contract; delay in resigning may establish affirmation; using grievance procedures after an asserted breach may result in affirmation
W E Cox Toner (International) Ltd v Crook [1981] ICR 823; Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978; Gordon v J & D Pierce (Contracts) Ltd [2021] IRLR 266
Importance of the pleaded case in Employment Tribunal proceedings
Chandhok and another v Tirkey [2015] I.C.R. 527
Outcomes
Appeal allowed in part; case remitted to the Employment Tribunal.
The Employment Tribunal erred in law in finding that the claimant affirmed her contract before resigning by failing to consider her ongoing grievance procedure. The Tribunal focused solely on the continued receipt of payment during the period of delay.
Employment Tribunal's finding of a breach of mutual trust and confidence upheld.
The Tribunal correctly considered the context of the claimant's removal from the WhatsApp group, including her raising genuine concerns about pay and lack of consultation.