The Employment Appeal Tribunal (EAT) held in the case of Nelson v Renfrewshire Council that employee failure to complete an employer’s grievance procedure was not relevant when assessing the employer’s liability for constructive dismissal. The correct approach was to assess the conduct of the employer and not events that may have resulted if certain events had unfolded.
The case serves as a reminder that when assessing a constructive dismissal claim that that the employers conduct must be carefully assessed. The employees conduct should not be the main focus but instead the employer’s conduct. Where an employee does not engage in the grievance procedure is irrelevant, but it will be an important factor for the Employment Tribunal must consider when assessing the award of compensation when a claim is successful.
What Were the Facts of the Case?
The facts of that case are, that the employee was employed as a teacher between the period 20 February 2012 until she resigned constructively on the 7 November 2022. Before her resignation she has raised a serious grievance against the headteacher for acting towards her in an aggressive and insensitive way in relation to a work-related issue. The employees’ stage 1 and stage 2 grievances were dismissed despite several witnesses claiming they had overheard conversations between the employee and the head teacher backing her allegation. The applicant chose not to follow the stage 3 appeal procedure and resigned at once.
A claim was sent to the Employment Tribunal for constructive unfair dismissal, repudiatory breach of the implied term of mutual trust and confidence. The reasons given were due to the head teacher conduct and the handling of the grievance.
Tribunal Decision
The Employment Tribunal held the held the grievance procedure was flawed and biased against the employee, but the head teachers conduct was a one-off incident which did not destroy the working relationship so to amount to a breach of mutual trust and confidence. The Employment Tribunal also found the employee had not completed the grievance procedure by not exercising the stage 3 appeal procedure. The Employment Tribunal felt the stage 3 was independent from the school and would have corrected the flaws in the earlier stages of the grievance procedure. The employee’s claim was therefore not accepted.
The employee appealed against the decision to the Employment Appeal Tribunal who said the Employment Tribunal had failed to correctly assess the facts at the time of the actual resignation. Instead, the Employment Tribunal had chosen to concentrate on the outcome of hypothetical future events. The fact the employee did not engage with the stage 3 grievance appeal was irrelevant.
The Employment Appeal Tribunal upheld the appeal. It directed that the Employment Tribunal should have concentrated on the employers conduct and not the grievance procedure when making its decision about the constructive dismissal. The case was remitted back to the Employment Tribunal.
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