EAT UNFAIR DISMISSAL – Constructive dismissal
Apparent bias. Whether Employment Tribunal had erred in failing to find that there was apparent bias where a member of the panel (the University Secretary) appointed to hear the employee’s appeal against rejection of a grievance which had included complaints directed at the conduct of another employee (concerning inter alia the commission of a crime involving a firearm) was a member of the committee who had appointed him, had participated in the decision not accept his resignation and had acted as the employer’s spokesperson in publicly articulating support for him, explaining that the university viewed it as a private matter which did not affect his employment. On appeal, held that Tribunal had erred. The facts showed that the inclusion of the University Secretary on the appeal panel rendered the grievance appeal procedure unfair – the appeal panel was tainted with apparent bias and the circumstances were such that the Claimant was entitled to conclude that the Respondent was in breach of the fundamental duty of trust and confidence in deciding to include him and persisting in his inclusion notwithstanding her having previously advised them, on more than one occasion that she considered that he had a conflict of interest. Claimant had been unfairly constructively dismissed and claim remitted to Employment Tribunal for a remedies hearing.
Smith J
[2011] UKEAT 0021 – 10 – 0102
Bailii
England and Wales
Citing:
Cited – Western 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 . .
Cited – Woods v WM Car Services (Peterborough) Ltd EAT 1981
Any breach of the implied term of trust and confidence will amount to a repudiation of the contract, but in cases of constructive dismissal, an employee has no remedy even if his employer has behaved unfairly, unless it can be shown that the . .
Cited – W A Goold (Pearmak) Ltd v McConnell and Another EAT 28-Apr-1995
It is an implied term in a contract of employment that employers should reasonably and promptly afford employees a reasonable opportunity to obtain redress of any grievance. Morison J said: ‘It is clear therefore that Parliament considered that good . .
Cited – Malik v Bank of Credit and Commerce International (BCCI); Mahmud v Bank of Credit and Commerce International HL 12-Jun-1997
Allowance of Stigma Damages
The employees claimed damages, saying that the way in which their employer had behaved during their employment had led to continuing losses, ‘stigma damages’ after the termination.
Held: It is an implied term of any contract of employment that . .
Cited – Diane Modahl v British Athletic Federation CA 12-Oct-2001
The claimant had been banned from competing as an athlete after failing a drugs test which she said was faulty. Her appeal was upheld, but she claimed damages for breach of contract in failing to provide an unbiased hearing. She appealed dismissal . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Flaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 01 November 2021; Ref: scu.430306