EAT CONTRACT OF EMPLOYMENT – Implied term/variation/construction of term – UNLAWFUL DEDUCTION FROM WAGES
UNFAIR DISMISSAL – Constructive dismissal
Breach of Contract/Unauthorised Deductions – Constructive Unfair Dismissal
The Claimant was a teacher, paid at level 1 on the upper pay scale (‘UPS’), working to terms and conditions laid down in the Burgundy Book. She complained that the Respondent had acted in breach of contract/had made unauthorised deductions from her pay (i) in failing to progress her to UPS2; (ii) when she had been absent from work due to work related stress, in failing to keep paying her at her full rate in accordance with paragraph 9.1 of the Burgundy Book. She further complained of constructive unfair dismissal, having resigned her employment due to the Respondent’s treatment of her in respect of her grievance (which had included a complaint about the pay progression issue) and what she took to be an email critical of her relating to an Occupational Health appointment.
The ET dismissed the Claimant’s claims. She had no right to automatic pay progression: she had to apply to be considered and had failed to do so. As for paragraph 9.1 of the Burgundy Book, she had not been able to show that a medical practitioner had attested that her injury (stress) had arisen out of, and in the course of, her employment. In respect of the constructive unfair dismissal claim, put as a ‘last straw’ case, the final matter for the Claimant had been the email relating to the Occupational Health appointment but, as she had known by the time of her resignation, that was not critical of her. As for the Respondent’s treatment of her in respect of her grievance, the ET found it had acted properly and had not thereby been in breach of any contractual obligation. In any event, the Claimant had agreed that the pay progression issue would be addressed as and when she returned to work. The Claimant appealed.
Held: allowing the appeal in part
On the appeal, the Respondent accepted that the Claimant had a contractual right to be considered for pay progression to UPS2 but argued it had not acted in breach of its obligation in this regard. This was not, however, how the ET had approached the case; it meant that the basis upon which the ET had found no contractual obligation had been rendered unsafe.
Further, although the ET had found that the Claimant had agreed the pay progression issue would be addressed upon her return to work, that did not amount to a finding that she had waived the right to complain of the breach of her express right to pay progression; although it was a relevant matter in terms of the implied obligation to maintain trust and confidence.
As the parties agreed there had been an obligation upon the Respondent to consider the Claimant’s pay progression (without her having had to make an application), the point would be remitted to the ET to determine whether the Respondent had complied with that obligation.
As for the claim under paragraph 9.1 of the Burgundy Book, whilst the Claimant’s GP might have expressed an opinion that the Claimant was unfit for work because of stress, the ET had not reached a perverse conclusion in finding that was not the same as saying the Claimant’s stress arose out of and in the course of her employment (the requirement for paragraph 9.1); the two were not necessarily the same and this had been a matter for the ET, which had reached a permissible conclusion on the point. This ground of appeal was dismissed.
In respect of the constructive unfair dismissal appeal, the ET had found that the relevant ‘last straws’ were the Respondent’s treatment of the Claimant’s grievance and the email regarding the Occupational Health appointment. The pay progression issue was part of the background to the grievance but was (a) not found to have been a last straw, and (b) would have to be viewed, in any event, in the light of the ET’s further finding that the Claimant had accepted that this issue was to be addressed as and when she returned to work and, thus, could not rely on it as a continuing breach of the implied obligation to maintain trust and confidence. Otherwise, the ET had made unchallenged findings in respect of the matters relied on as ‘last straws’ and its conclusion on constructive dismissal was not susceptible to challenge.
Eady QC HHJ
 UKEAT 0005 – 16 – 0407
England and Wales
Updated: 20 January 2022; Ref: scu.567945