Get in touch 0117 325 0526
Get in touch 0117 325 0526
Facts: The employee, a teacher, brought a grievance against her headteacher, alleging aggressive and intimidating behaviour.
During the grievance hearing, it was found that witnesses had overheard the headteacher raising her voice and speaking in an angry tone to the employee. Also saying words to the effect of ‘if you’ve got something to say, say it to my face’ and ‘what we were discussing is confidential’. Despite this, the grievance was dismissed at stage 1. The employee appealed to stage 2 which was again dismissed. She did not appeal to stage 3 (the final stage of the grievance procedure) which would have been heard by a panel of council members. She instead resigned.
The employee brought a Tribunal claim for constructive unfair dismissal (arguing that the head teacher’s behaviour and the handling of the grievance process amounted to a repudiatory breach of the implied term of mutual trust and confidence).
Tribunal decision
The Tribunal dismissed the employee’s claim. Although the Tribunal accepted that the headteacher had acted in an aggressive and intimidating way (and that the grievance procedure was inadequate) it said this behaviour was out of character and a one-off incident which did not seriously damage relationship and did not amount to a repudiatory breach.
Additionally, in respect of the grievance procedure, the Tribunal found the employee had not exhausted the internal processes and if she had appealed to stage 3 this would have been independent and put right the previous stages. The employee appealed.
EAT decision
The EAT upheld the employee’s appeal. The Tribunal should not have attached weight to the employee’s failure to follow all the stages of the grievance procedure. The only conduct to be considered when deciding if an employee has been constructively dismissed, is that of the employer. The fact that the employee had not completed all stages of the grievance procedure was an irrelevant consideration when determining whether a repudiatory breach had occurred.
The EAT referred the case back to the Tribunal to decide whether, ignoring the employee’s failure to exhaust the grievance process, the employer’s conduct amounted to a repudiatory breach.
Implications: It is the employer’s (rather than the employee’s) conduct which is in the spotlight in a constructive unfair dismissal claim. There is no duty on the employee to complete an internal process (such as a grievance process) before bringing such claim. If the employer has committed a repudiatory breach of contract then nothing more is needed. This makes it all the more important that employers act in a fair manner during a grievance (or other internal) process, comply with their procedures and carry out an unbiased investigation and hearing.
5.0/5