Nelson v Renfrewshire Council (Employment Appeal Tribunal)

Background 

When an employee with over 2 years’ service is the subject of a fundamental breach of contract by the employer, then they have the ability to resign and claim constructive unfair dismissal in the Employment Tribunal.

In Nelson v Renfrewshire Council a teacher raised a grievance about the school’s head teacher following a work related issue.  The original Employment Tribunal found that there had been no fundamental breach of contract, partly because the Employment Tribunal had taken into account that the employee resigned before the final stages of the grievance procedure.  The employee appealed. 

The EAT confirmed that the only conduct to be considered when determining a constructive dismissal claim is the conduct of the employer.  Provided there had been a fundamental breach of contract before the resignation then the employee’s claim should succeed.  The Tribunal had to look at whether a repudiatory breach of contract had occurred when the employee resigned.  The Tribunal made a number of further errors including considering whether the conduct of the employee had actually damaged the relationship of trust and confidence as opposed to whether it would have been likely to have that effect (the proper test).  It also failed to consider whether the employer’s conduct in the grievance process could also be regarded as a repudiatory breach. 

Comment

Whilst the employee’s failure to follow through the grievance process can arguably be a breach of the ACAS Code of Practice by the employee entitling the Tribunal to reduce any compensation by up to 25%, the facts here remind us that in determining liability for constructive dismissal, the employer’s conduct remains the focus.