Abbey National Plc v Fairbrother: EAT 12 Jan 2007

EAT Unfair Dismissal
Disability discrimination
The Tribunal had found a dismissal to be unfair because of flaws in a grievance procedure, following which the Claimant had resigned. They also found that the Claimant, who suffered an obsessive compulsive disorder, was subjected to taunts that she would not have had inflicted on her if she had not had the disorder. On appeal, the EAT held that the Tribunal had erred in law. They failed to apply a ‘range of reasonable responses’ test to the employers’ operation of the grievance procedure. They failed to apply the correct statutory test for disability discrimination.
Smith J said: ‘conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:
1. what was the conduct of the employer that is complained of?
2. did the employer have reasonable and proper cause for that conduct?
If he did have such cause, then that is an end of it. The employee cannot claim that he has been constructively dismissed. If the employer did not have such cause, then a third question arises:
3. was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?’

Smith J
[2007] UKEAT 0084 – 06 – 1201, [2007] IRLR 320
Employment Rights Act 1996 94, Disability Discrimination Act 1995 4 5
England and Wales
CitedMurco Petroleum Ltd v Forge EAT 1987
The employer was found to have acted unreasonably but was not in significant breach going to the root of the contract where what they had done was not a ‘capricious exercise’ and was not an ‘arbitrary decision’. The employee’s claim of constructive . .
CitedWestern Excavating (ECC) Ltd v Sharp CA 1978
To succeed in a claim for constructive dismissal the plaintiff must establish a breach of contract by the defendant, that the breach was sufficiently serious to have justified the claimant resigning, or at least be the last in a series of events . .
CitedWhitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
CitedClark v Nomura International plc 2000
Mr Clark was dismissed on three months’ notice and, although he was paid his basic salary for that period and was still in employment at the date for payment of the annual bonus, he was not paid a bonus. He had earned substantial profits for the . .
CitedNoorani v Merseyside TEC Limited EAT 21-Apr-1999
A tribunal’s discretion not to grant witness summonses because the witnesses appeared to be only of limited relevance was not to be interfered with, save where it was unreasonable. A tribunal can always act to remedy the refusal later if this . .
CitedTransco Plc v O’Brien CA 7-Mar-2002
The company appealed against a finding that they were in breach of their contract of employment in not including the claimant in those considered for an enhanced redundancy package.
Held: The appeal failed. Tribunals should be cautious before . .
CitedHamilton v Tandberg Televison Ltd EAT 12-Dec-2002
The applicant claimed unfair constructive dismissal.
Held: The appeal failed. McMullen QC J said: ‘It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation. The standard against which investigation . .
CitedGrattan Plc v Kamran Hussain EAT 30-Apr-2003
EAT Unfair Dismissal – Reason for dismissal including substantial other reason.
Burke QC discussed the need for an employer to make investigations: ‘The issue was not whether further investigation might . .
CitedPost Office v Roberts EAT 1980
When looking to see whether there had been a fundamental breach of an employer’s or employee’s obligations, the conduct of the parties has to be looked at as a whole and its cumulative impact assessed: ‘in each case, in our view, you have to look at . .

Cited by:
CitedGAB Robins (UK) Ltd v Triggs EAT 13-Jun-2007
Constructive dismissal
Last straw constructive unfair dismissal. Last straw; employer’s failure to deal properly with her grievance – Constructive dismissal . .
CitedGMB Trade Union v Brown EAT 16-Oct-2007
EAT Unfair Dismissal: Reason for dismissal including substantial other reason / Compensation
The employee claimed constructive unfair dismissal because the employers refused to modify their grievance . .
CitedEdinburgh Council v Wood EAT 2-May-2008
EAT UNFAIR DISMISSAL: Constructive dismissal – Tribunal found two ‘stand alone’ material breaches, one in respect of penalty imposed for misconduct and one in respect of respondents’ response to claimant’s . .
CitedClaridge v Daler Rowney Ltd EAT 4-Jul-2008
EAT UNFAIR DISMISSAL: Constructive dismissal
The Employment Tribunal held the employee had not been constructively dismissed. One of the complaints related to defects in the handling of the grievance . .
CitedBournemouth University Higher Education Corp v Buckland EAT 8-May-2009
EAT UNFAIR DISMISSAL: Constructive dismissal
Whether fundamental breach of implied term of trust and confidence cured, so that the Claimant’s resignation did not amount to constructive dismissal.
CitedBuckland v Bournemouth University Higher Education Corporation CA 24-Feb-2010
The claimant had been dismissed from his post as chair of archeology after criticism of his marking practices. Though a report vindicated him, the respondent continued with disciplinary procedures. He claimed unfair dismissal. The EAT had allowed . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination

Updated: 20 January 2022; Ref: scu.247777