Legal Updates

Employment Law – Unfair Constructive Dismissal – Failure to deal with Grievance brought by Employee

In the case of Bates v Liverpool City Council [2007], an employee (a social worker) lodged a grievance against her employer in May 2002, in relation to supervision, which was rejected by his employer. He appealed against this decision and this was upheld at a grievance appeal hearing.

In September 2002, the employee was suspended after a child in the care of the employer died. There was a disciplinary hearing and following this hearing, the employee was given a written warning. He appealed against this written warning which was upheld by the employer.

In September 2003, another child died. The key worker for that child was V and the employee was the supervisor of V. The employee was suspended in October and there was a disciplinary hearing. It was held that the employee had failed in his duty to take reasonable steps to ensure that V was following the employer’s child protection procedures, which amounted to gross misconduct. He was given a final written warning by the employer and was demoted. He appealed against this decision and returned to work.

Although the appeal was due to take place in December 2004, it was postponed until March 2005. On 20 January 2005, the employee resigned on the grounds of unjustified and unfair disciplinary sanction, compounded by, inter alia, a failure to deal with his grievances. He then brought proceedings against his employer in the employment tribunal, claiming constructive unfair dismissal. The tribunal dismissed his claim. The employee appealed to the Employment Appeal Tribunal (EAT).

The EAT had to decide:-

Whether the tribunal had erred in its decision by:-

finding that conduct by the employer had to be ‘grave and weighty’ in order to amount to a breach of contract, and
applying the ‘range of reasonable responses’ test, applicable to ordinary unfair dismissal, when considering whether the disciplinary sanction constituted repudiation in the instant case.

The EAT ruled:-

‘…In the circumstances ‘grave and weighty’ had been the tribunal’s paraphrase of the familiar test of whether the employer had been guilty of a fundamental breach going to the root of the contract of employment. The finding in relation to the grievance, on a fair interpretation, was that the employer’s failings did not constitute a fundamental breach nor, putting it another way, were such failings grave and weighty…
‘…Case authority in the field of what might conveniently be called direct unfair dismissal ought not to be imported wholesale into cases of constructive dismissal. The test for determining whether a sanction short of dismissal could be regarded as repudiation was whether the sanction was disproportionate…’
‘…In the instant case the tribunal had asked itself essentially the correct question and had reached an answer which had been properly open to it on the evidence…’

‘…The issue was whether the tribunal had erred in law in considering whether the sanction of demotion and a final written warning fell ‘within the range of options open to a reasonable employer’. That was a distinction without a difference in a demotion case…’

The appeal was dismissed. Bottom of Form

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© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.