Royle v Greater Manchester Police Authority

EAT: Judge Burke QC, Mr D Welch and Mr S Yeboah: 27 September 2006

The claimant was employed from 1998 as a welfare officer for the respondent employers and in September 2001 was promoted to senior welfare officer. In January 2004, following an unsatisfactory meeting with her employers, she resigned claiming that she had been constructively dismissed, in that a number of events, relating to health and safety, breach of confidentiality and under-staffing, occurring both before and after her promotion, breached the implied contractual term of trust and confidence. On her claim for unfair dismissal, an employment tribunal considered the specific incidents relied on, concluded that by accepting promotion she had affirmed any previous breaches of contract and found that subsequent events did not, either cumulatively or individually, constitute a fundamental breach of contract. The tribunal further found that the alleged breaches were not, in any event, the effective cause of her resignation, and it dismissed the claim.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) When considering a claim of constructive dismissal which involved a large number of complaints about numerous different aspects of treatment over a substantial period, a tribunal was not obliged to identify, and make express findings about, each item of complaint. The tribunal's duty was to take account of matters which it regarded as having substance and to conclude whether, looked at cumulatively, there was a fundamental breach of contract on the part of the employer. Since the tribunal had clearly had in mind the relevant complaints in looking at the picture overall, there was no error of law in not making more specific reference to them when expressing its conclusions.

(2) An employee's continuation to work after adverse conduct on the part of the employer should not normally be treated as amounting to a waiver or an affirmation of the contract of employment such as permanently to prevent reliance on such conduct as part of a cumulative course that included subsequent conduct. An unconditional waiver which had the effect that the preceding conduct could never thereafter be relied on was likely to be established only rarely and on the basis of very clear evidence. Accordingly, the tribunal had erred in law in concluding, when it had never been argued, that there had been a permanent waiver of any preceding breaches when the claimant accepted promotion, but, even taking those earlier complaints into account, the tribunal's conclusion would still have been that the employer's conduct did not amount to a fundamental breach of contract and that such conduct was not, in any event, an effective cause of the claimant's resignation.

Per curiam. It is plainly more consistent with the overriding objective that the principles in Bansi v Alpha Flight Services [EAT, 10 March 2004] be followed than to leave the appeal tribunal to consider seeking clarification from the employment tribunal. It is much to be preferred that a party who believes that an important point has not been dealt with by the tribunal should seek clarification from the tribunal before the expense and delay involved in an appeal arise.

The appeal was dismissed.

Appearances: Richard Oulton (Graham Leigh Pfeffer & Co, Manchester) for the claimant; Anthony Howard (Solicitor, Greater Manchester Police Authority) for the employers.