Employee’s failure to exhaust grievance process not relevant to constructive dismissal claim

In Nelson v Renfrewshire Council, the (Employment Appeal Tribunal) EAT held that the Tribunal incorrectly gave weight to an employee’s failure to exhaust the grievance procedure when determining whether there had been a repudiatory breach of the implied term of mutual trust and confidence. They further reiterated a decision made in Tolson v Governing Body of Mixenden Community School (2003), that when deciding a constructive dismissal claim, the only relevant conduct is that of the employer.

Facts

The Claimant was a schoolteacher who raised a grievance over an incident with the headteacher, where she accused the latter of behaving in an aggressive and intimidating manner toward her over a work-related issue.

The Respondent had a 3-stage procedure in place for dealing with grievances, which outlined that employees are expected to exhaust this procedure if they which to take their grievance to an Employment Tribunal.

Stage 1 consisted of a hearing between the claimant and the school’s education manager who found that there was insufficient evidence to find the headteacher behaved in a manner that was ‘threatening, insensitive and aggressive’.

The Claimant appealed this decision to a Stage 2 hearing which took place with the Head of Care and Criminal Justice for the Respondent. The same outcome was found at Stage 2.

A Stage 3 hearing would have been held by a panel of council members. The Claimant did not exercise her right to appeal to Stage 3 as she had ‘lost faith in the system’. Instead, she resigned from her position citing a ‘serious material breach’ of contract (i.e. an implied term of trust and confidence) and constructive dismissal.

She referred to the following evidence:

• That first-hand witnesses had been ignored.
• The chair of the Stage 1 hearing had admitted she was not impartial.
• The chair of the Stage 2 hearing had ignored the above admission when deciding the outcome.

Decision

The Tribunal at first instance dismissed the claim. Whilst they accepted the claimants’ allegations that the headteacher had behaved in the accused manner and that the grievance procedure had been conducted inadequately, it was found that the resultant damage to the relationship of trust and confidence was insufficient to amount to a repudiatory breach of contract. When reaching this decision, the Tribunal held the view that Stage 3 of the grievance procedure would have been conducted fairly and would likely right the wrongs of the previous two Stages. Therefore, because there was potential to mend the relationship in the remaining stages of the process, the claimant’s failure to exhaust the procedure was intrinsically linked to the claim’s dismissal.

The EAT allowed the claimants appeal.

They found that the Tribunal had placed impermissible weight on the claimant’s failure to exhaust the grievance procedure when reaching the conclusion that insignificant damage had been done to the relationship of trust. The decision in Tolson v Governing Body of Mixenden Community School (2003) was referred to, highlighting that the only conduct to be considered when determining constructive dismissal is the employers.

The case was remitted to the Tribunal for re-consideration.

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