Employment case study: Nelson v Renfrewshire Council
In Nelson v Renfrewshire Council, the EAT has reiterated that, even if an employee chooses not to exhaust a grievance process, this is not a relevant factor when considering if there has been a breach of the implied term of trust and confidence (i.e. constructive unfair dismissal).
The Facts of Nelson v Renfrewshire Council
Ms Nelson was employed as a teacher by Renfrewshire Council from February 2021 until her resignation in November 2022. A dispute arose in October 2021 and Ms Nelson accused the head teacher of behaving aggressively during a work-related discussion. Ms Nelson alleged that the head teacher had been aggressive and intimidating in the meeting and afterwards in the stairwell of the building. There was at least a partial corroboration of Ms Nelson’s account, by a witness who overheard some of the incident. Ms Nelson lodged a grievance about the head teacher’s behaviour, which was investigated by Miss Bell. The grievance proceeded to a Stage 1 Hearing, which concluded that there was insufficient evidence to support Ms Nelsons’ claims.
Ms Nelson appealed this decision, and it went to a Stage 2 Hearing. The Hearing was chaired by Mr Trainer (Head of Care and Criminal Justice). The appeal was unsuccessful. The letter reminded Ms Nelson that she had the opportunity to appeal again to a Stage 3 Meeting. This would have been heard by a panel of Council members rather than members of the local authority management team who had heard Stage 1 and 2 of the grievance.
Ms Nelson chose not to pursue a Stage 3 appeal as she cited that she did not have faith in the process anymore. As a result, Ms Nelson resigned in November 2022, and claimed constructive unfair dismissal. In her resignation letter, Ms Nelson stated that her only option was to resign because she believed that the evidence from an eye witness had been ignored. Ms Nelson also alleged that Ms Bell had admitted that she was not impartial, and Mr Trainer had not dealt with that admission during the Stage 2 Hearing.
Ms Nelson claimed constructive unfair dismissal alleging that there had been a repudiatory breach of the implied term of mutual trust and confidence. She alleged that the head teacher’s behaviour towards her, and the manner in which her grievance had been handled, amounted to a repudiatory breach – meaning she felt she was entitled to resign and claim constructive unfair dismissal.
The Employment Tribunal Judgment
The Employment Tribunal dismissed Ms Nelson’s claim for constructive unfair dismissal. It found that the head teacher’s behaviour was aggressive, but concluded that it was a one off incident which was fleeting, and was out of character for the head teacher.
The Tribunal concluded that this alone did not breach the implied term of trust and confidence. Whilst it noted it caused some damage to the relationship of trust and confidence, it did not seriously damage or destroy the relationship so as to amount to a breach of the implied term.
The Tribunal found that there were flaws in the grievance process, notably Ms Bell’s handling of the Stage 1 grievance process was “inadequate, unfair and biased” against Ms Nelson. They also commented that the Stage 2 grievance process not only failed to correct the flaws of the Stage 1 Grievance, but additionally their own approach to evidence was “problematic.”
The Employment Tribunal found that despite there being some flaws in the grievance process, in their opinion, the relationship between Ms Nelson and her employer had not been sufficiently damaged to justify a constructive unfair dismissal claim.
Notably, the Employment Tribunal gave weight to the fact that Ms Nelson had failed to proceed her grievance to a stage 3 hearing. The Tribunal found that Ms Nelson should have had a reasonable expectation that Stage 3 would have been independent, fair and free from bias, and therefore would have provided a realistic chance of correcting the errors in the Stage 1 and 2 process. The Tribunal thus concluded that, as the internal processes had not been exhausted as at the date of Ms Nelson’s resignation, the relationship of trust and confidence had not been damaged sufficiently seriously to find a claim of constructive unfair dismissal.
The Employment Appeal Tribunal Judgment
Ms Nelson appealed to the Employment Appeal Tribunal on three separate points: firstly that the Employment Tribunal took into account irrelevant considerations; secondly they misapplied legal principles; and thirdly they had failed to properly access the cumulative effect of the employer’s conduct.
The EAT noted that Ms Nelsons claims had failed as a result of the decision by the Tribunal that the threshold for a repudiatory breach of contract was not reached in Ms Nelson’s claim. The Tribunal had clearly linked the failure of Ms Nelson to exhaust the grievance process and the conclusion that the relationship had not been damaged to the extent necessary to find a claim of constructive dismissal.
The EAT revisited the legal principles as set out in Tolson v Governing Body of Mixenden Community School, that the only conduct that should be considered when determining whether there had been constructive unfair dismissal should be the conduct of the employer. It therefore concluded that the failure to complete a grievance process on behalf of the employee should not be a determining factor in assessing whether there has been a breach of implied trust and confidence.
The EAT also considered that the Employment Tribunal had erred in considering whether the conduct had actually damaged the relationship of trust and confidence (Malik Principle). The Tribunal found that the correct test should be whether the conduct is likely to damage trust and confidence, not whether it actually did.
Key Takeaways from Nelson v Renfrewshire Council
This judgment serves as a useful reminder that even if an employee has failed to exhaust a grievance process, they can still successfully claim for constructive unfair dismissal. It also reminds us that the key considerations in any constructive unfair dismissal claim are:
- The conduct of the employer, not the employee; and
- The situation as it stands, as at the date of resignation, rather than speculation about what might have happened in the future.
Contact us
Isobel Davis is a solicitor in our employment law team. If you have any questions or concerns related to the points raised in this article, please get in touch.