Employment & Pensions Blog: Employee’s Failure to Exhaust Grievance Procedure is not a Relevant Factor in a Constructive Dismissal Claim

In the recent case of Nelson v Renfrewshire Council, the Employment Appeal Tribunal (EAT) held that an employee’s failure to exhaust the employer’s grievance procedure was not relevant when considering liability in a constructive dismissal claim. The EAT held that the only conduct to be considered in a claim of constructive dismissal was that of the employer and not events which could have occurred if certain events had happened. 

Background

Ms Nelson was employed as a teacher from 20 February 2012 until she resigned with immediate effect on 7 November 2022. Prior to Ms Nelson’s resignation she lodged a grievance against the headteacher alleging that, during a discussion about a work-related issue, the headteacher behaved in a way which was threatening, insensitive and aggressive. During the grievance hearing, it was found that several witnesses had overheard the headteacher saying to Ms Nelson words to the effect of ‘If you’ve got something to say, say it to my face’ as well as ‘what we were discussing is confidential’. However, the stage 1 grievance outcome dismissed the grievance stating that they did not find evidence of the headteacher behaving in this way. Ms Nelson 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 and instead resigned. 

Ms Nelson then brought a claim to the Employment Tribunal (ET) for constructive unfair dismissal on the basis that the headteacher’s behaviour and the manner in which the grievance was handled amounted to a repudiatory breach of the implied term of mutual trust and confidence. The ET accepted Ms Nelson’s allegation that the headteacher acted in an aggressive and intimidating way and that the grievance procedure was inadequate, unfair and biased against her. However, the ET held that the headteacher’s behaviour was a one-off incident which did not seriously damage or destroy that relationship so as to amount to a breach. Additionally, in respect of the grievance procedure, the ET found that Ms Nelson had not exhausted the internal processes and if she had appealed to stage 3 this would have been independent and could have righted the wrongs of the prior stages. 

EAT Judgment 

Ms Nelson appealed to the EAT on the basis that the ET had failed to properly assess the situation as it stood at the point of her resignation and instead, the ET focused on hypothetical future events. 

The EAT upheld the appeal, finding that the ET should have only considered the conduct of the employer and the fact that Ms Nelson did not engage with the third stage of the grievance procedure was an irrelevant consideration in deciding whether the constructive unfair dismissal claim was made out or not. The claim was remitted back to the ET to consider whether, without having regard to the failure of Ms Nelson to exhaust the grievance procedure, the conduct found would have amounted to a repudiatory breach of the implied term of trust and confidence.

Comment

This case is a good reminder of the primary factor to consider when assessing whether there has been a repudiatory breach of the employment contract between an employer and employee. The focus should not be on the employee’s conduct but instead it is the employer’s conduct that is of relevance in deciding the issue of breach in a constructive unfair dismissal claim. A failure to engage in an employer’s grievance procedure or exhaust all stages under it will be an irrelevant consideration for the purposes of ascertaining if there has been a breach of the implied term of trust and confidence.  However it could be relevant for the purposes of deciding what compensation should be awarded in the event of a successful claim.

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