EAT Practice and Procedure: Appellate Jurisdiction/Reasons/Burns-Barke – UNFAIR DISMISSAL – Constructive dismissal
Reasons
The simplification of the wording of the Rule relating to the content of the Reasons (i.e. the change from Rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 to Rule 62(5) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) had not changed the requirement for Reasons to conform to the Rule. Greenwood v NWF Retail Ltd [2011] UKEAT/0409/09/JOJ, [2011] ICR 896 still applied and a failure to comply with the requirements of the Rule would amount to an error of law (see paragraphs 51 to 58 of that judgment). In order to comply with the Rule it was necessary for the requirements of the component parts of the Rule to be discoverable in the Reasons. The approach of the Court of Appeal in Meek v City of Birmingham District Council [1987] IRLR 250 should continue to be the prism through which compliance with the Rule was to be viewed (see paragraphs 59 to 63 of the judgment in Greenwood). In the instant case the Reasons took a largely narrative form and ‘bare’ conclusions had to be connected to findings elsewhere in the Reasons but when that exercise was undertaken it could be seen that the Reasons were adequate.
Constructive Dismissal
There is no difference in principle between a unitary repudiatory breach of contract and a repudiatory breach of contract comprising a series of acts, which taken together, amount to a breach of the implied term as to mutual trust and confidence and the last of which amounts to a ‘last straw’. This is made clear by paragraphs 20 and 21 of the judgment of Dyson LJ in London Borough of Waltham Forest v Omilaju [2005] IRLR 35 and nothing said in Addenbrooke v The Princess Alexandra Hospital NHS Trust UKEAT/0265/14/DM should be understood as contradicting that. Affirmation by the employee after a repudiatory breach cannot be ‘revived’ except by a further repudiatory breach and there cannot be a series of ‘last straws’; Safehaven Investments Inc v Springbok Ltd [1996] 71 P and CR 59, White Rosebay Shipping SA v Hong Kong Chain Glory Shipping Ltd [2013] EWHC 1355 (Comm), and Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Co Ltd [2013] EWHC 3066 (Comm) considered and applied.
In the instant case the Employment Tribunal and made fundamental findings of fact as to causation, which could not be challenged on appeal and had implicitly directed itself correctly as to issues of affirmation. Accordingly the appeal was dismissed.
Hand QC HHJ
[2016] UKEAT 0177 – 15 – 0306
Bailii
England and Wales
Employment
Updated: 17 January 2022; Ref: scu.565127
