The employee complained that he had been constructively dismissed. The Tribunal held that applying the test in Malik v BCCI the implied obligation of trust and confidence had not been breached. While the Respondents had behaved badly in some ways not all the causes of breakdown were to be attributed to them and the employee was to some degree a contributor to the breakdown. The claimant submitted that it was striking that the Tribunal largely referred to the test in Malik as necessitating destruction of the implied obligation. In fact it was sufficient if the relationship had been seriously damaged. Held that the Tribunal’s judgement did not suggest that the wrong test had been applied. It had recited the full test at one point in the Judgement. The likely explanation for the repeated reference to the destruction of the obligation rather than to serious damage, was that the Tribunal was abbreviating the test for convenience. When the evidence was considered, and the Tribunal’s reasoning examined the Tribunal’s conclusion was consistent with the correct test having been applied. Held further that by engaging in a grievance process available under the contract of employment the Claimant did not affirm the contract. Held further that the Tribunal had erred in law by failing to determine whether the hearing was to be restricted to liability as opposed to liability and quantum. Had that been the sole issue in dispute the case would have been remitted back so that the Claimant had an opportunity to lead evidence relevant to remedy.
Citations:
[2021] UKEAT 0010 – 20 – 1201
Links:
Jurisdiction:
England and Wales
Employment
Updated: 09 December 2022; Ref: scu.661683
