Processes are exhausting?
We are all used to the fundamental principle that an employee who has been dismissed must exhaust all internal processes before they can launch a tribunal claim. The simple point is that an appeal hearing might give an employer the chance to rectify a poor decision and order reinstatement.
So, what is the position where an employee resigns and claims constructive unfair dismissal. Are they obliged to use and exhaust all available internal processes in that situation?
A recent case suggests not. Remember to be able to claim constructive unfair dismissal an employee needs to prove that the employer breached an actual contractual term or breached the implied term of mutual trust confidence and the breach was so significant that the employee was entitled to treat the employment as at an end. In other words, a repudiatory beach. In a recent case the employee, who was a teacher, lodged a grievance about the behaviour of the head teacher about whom it was alleged that they had acted in an aggressive and intimidating manner. There was some corroboration by witnesses who overheard the incident. An investigation was conducted and the grievance was dismissed. The employee appealed and the grievance was again dismissed. There was a third appeal available to the employee – this time outside of the school management team and to a panel of Council members. The employee had lost faith in the process and did not appeal. She resigned with immediate effect. She said in her resignation letter that the evidence of direct witnesses to events had been ignored and the investigating officer had accepted that she was not impartial! The employee claimed constructive unfair dismissal and alleged that the head teacher’s treatment of her and then the manner in which her grievance had been dealt with amounted to repudiatory breach of the implied term of mutual trust and confidence.
The tribunal dismissed her claim on the basis that the head teacher’s actions were short lived and out of character and it did not seriously damage the relationship of trust and confidence. The tribunal accepted that the investigation of the grievance was poor and in fact biased against the employee but went onto say that the third stage of the process carried a reasonable expectation that it would independent and would right the wrongs of the first two stages of the process. Thus, the internal processes had not been exhausted and the scope of the potential process that remained meant that the relationship of trust and confidence and not been sufficiently damaged.
The employment appeal tribunal allowed the employee’s appeal. The tribunal had erroneously focused on the internal process and attached too much weight to it. Remember, when deciding whether an employee was entitled to resign and claim constructive unfair dismissal the only conduct to be considered is that of the employer and not the employee. The matter in hand was simple to determine whether the employer’s behaviour was calculated or likely to destroy mutual trust and confidence? Whether or not the employee had invoked stage 3 of the grievance procedure, or that a favourable outcome might have been achieved, was actually irrelevant in determining that test and whether a repudiatory breach had occurred.
Your take-away point: don’t mess with the process! Get it right from the start. Any sensible grievance investigation has to consider and review all the available evidence and to make reasoned and reasonable findings of fact that are supported by evidence. A biased report produced by any employer in these circumstances is just a waste of time and a litigation risk.
Pronouns and problems?
Consider this, a Council employee in Yorkshire signed his emails ‘XYChromosomeGuy/AdultHumanMale’. His employer only allowed preferred pronouns. The employee was told to stop but did not and was subsequently dismissed for failure to abide by a reasonable management instruction and insubordination. He claimed unfair dismissal and discrimination related to his gender-critical philosophical belief. The claims were dismissed. The tribunal said, “Why did the claimant create the email footer?…it was an act of protest. The claimant knew that it was a provocative act…he was mocking the idea of gender self-identification and derisory of those who self-identify….the fact that he stated very clearly that he would not remove the footer and would not comply with a management instruction indicated that he had decided to no longer consider himself bound by the contract of employment. It is an obvious implied term of contracts of employment that employee will follow reasonable management instructions. It goes to the heart of the employment relationship”.
Indeed it does.
