UNFAIR DISMISSAL – Constructive dismissal
In July 2017 the Claimant wrote to the Respondent complaining of various conduct, which she said amounted to a breach of the implied duty of trust and confidence. This related to the Respondent’s handling of a subject access request, a whistleblowing complaint and a grievance raised by her, its handling of an ongoing disciplinary process in relation to allegations against her, and other matters. She indicated, however, that if, by a given deadline, her suspension were to be lifted and disciplinary proceedings withdrawn, then she would withdraw her grievance and subject access request. The Respondent replied that it could not, when a report on the disciplinary allegations was awaited, agree to withdraw the suspension and disciplinary charges at that point. The claimant thereupon resigned.
In a reserved decision following a full merits hearing, the Employment Tribunal dismissed claims of direct race discrimination, victimisation, detriment for having made a protected disclosure, and deduction from wages; and it found that the Claimant had not been constructively dismissed.
Three grounds of appeal proceeded to a Full Hearing.
Ground 1 was that there had been a procedural irregularity because a Tribunal member was asleep, or appeared to be asleep, more than momentarily, at a number of points during the cross-examination of both the Claimant and one of the Respondent’s witnesses. On the evidence presented to it, the EAT concluded on the balance of probabilities that this was, unfortunately, factually correct. Accordingly, the fair-minded informed observer would conclude that there was a real possibility that the fairness of the trial was affected. Accordingly, the appeal was upheld, in respect of the outcome of all the live claims that were before the Tribunal.
Ground 8 and 9, which related to the finding that the Claimant was not constructively dismissed, were also upheld, and the decision on that point would have been overturned, even had Ground 1 not succeeded. This was because the Tribunal erred (a) in inferring that, because of the stance the Claimant took in her first letter in July 2017, it must logically follow that it was only the refusal to lift the suspension and the disciplinary charges, and not also any of the Respondent’s earlier conduct, that influenced her decision to resign; (b) in taking into account the fact that, immediately upon resigning, she took up an offer of employment elsewhere, without considering whether, even if the availability of another job had influenced her decision to resign, the conduct of the Respondent had still also played a part in that decision; and (c) in its approach to the significance of the fact that, not long after she resigned, the Claimant applied for another position with the Respondent, to the question of whether the Respondent was in fundamental breach.
In light of the outcome on Ground 1, the matter was remitted for re-hearing before a differently constituted Tribunal.
[2019] UKEAT 0125 – 19 – 1110
Bailii
England and Wales
Updated: 12 August 2021; Ref: scu.650899