Background
In Ms Nelson v Renfrewshire Council, Ms Nelson was employed by Renfrewshire Council as a teacher. Ms Nelson raised a grievance after being subjected to aggressive and intimidating behaviour by the Head Teacher.
There were three stages to the Council’s grievance procedure. The grievance was dismissed at stage 1 on the basis that there was no evidence to substantiate Ms Nelson’s claim, despite the incident being partially witnessed by a third party. It was then dismissed at the stage 2 appeal, where it was accepted that whilst Ms Nelson felt threatened, the Head Teacher had not acted threateningly, insensitively or aggressively.
Ms Nelson did not further appeal to stage 3 and resigned with immediate effect. She had lost faith in the grievance process and felt that the Head Teacher’s behaviour and the way that her grievance was treated was a repudiatory breach of the implied term of mutual trust and confidence.
The Employment Tribunal dismissed her constructive dismissal claim, stating that there was a “realistic chance” that the stage 3 appeal could have righted the wrongs of stages 1 and 2. Ms Nelson’s failure to appeal further meant that the threshold to establish the repudiatory breach had not been met because “the situation had not reached the level of serious damage to, or destruction of, the relationship of trust and confidence”.
However, the Employment Appeal Tribunal rejected this analysis in August 2024, citing Tolson v Governing body of Mixenden Community School [2003], which established that only the conduct of the employer is relevant when determining a claim of constructive dismissal. Therefore, it is irrelevant that the employee had not exhausted the employer’s grievance process, although it may affect the level of compensation awarded.
Takeaways
This highlights that employers should not rely on employees needing to exhaust the grievance process before they can successfully bring a claim for constructive dismissal.
To mitigate risk, employers should ensure that each stage of their grievance procedure is fair and be able to show that the grievance was properly investigated and considered.
For more information on how to manage grievances effectively, contact Peach Law:
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