Williams v The Governing Body of Alderman Davies Church in Wales Primary School (UKEAT/0108/19/LA)

A teacher resigned after prolonged mistreatment during disciplinary and grievance processes. The EAT held the Tribunal erred in dismissing his constructive dismissal claim by focusing only on the final 'innocuous' act, and substituted findings of constructive and unfair dismissal.

Facts

The Claimant, Mr Williams, was a teacher employed at Alderman Davies Church in Wales Primary School. From April 2015 he was a disabled person by reason of a mental impairment affecting his reaction to stress. In April 2015 he was suspended over an unspecified child protection allegation, later revealed to involve manhandling a child, though the identity of the child and accuser were withheld. He was permitted to return in July 2015 but not to teaching. After being asked to organise a sports day in September 2015, he developed severe stress symptoms and never returned to work.

In February 2016, a second disciplinary investigation began concerning alleged data protection breaches, after the Claimant had downloaded documents to share with his union. His grievance and grievance appeal were unsuccessful. On 13 June 2016, he wrote stating he had ‘lost all faith’ in his employer. On 14 June 2016, he learned via his solicitor that Mrs Sydenham, a colleague and union representative subject to a related investigation, had been refused permission to contact him. On 16 June 2016 he resigned.

The Employment Tribunal made extensive findings critical of the Respondent, including that Headteacher Mrs Matchett was motivated by a desire to keep control of the process rather than following any genuine policy. Nevertheless, the Tribunal found the refusal to permit contact between Mrs Sydenham and the Claimant was ‘innocuous’ and could not contribute to a breach of the implied term of trust and confidence, and therefore dismissed the constructive dismissal claim. The Tribunal also dismissed a reasonable adjustment claim concerning withholding the child’s name, on the basis that it could not be sure Mrs Matchett would take this approach in all such processes.

Issues

The principal issues before the EAT were:

• Whether the Tribunal erred in concluding that, because the final act (refusal to permit Mrs Sydenham’s contact) was innocuous, the constructive dismissal claim must fail, even if prior conduct amounted to a fundamental breach which had not been affirmed and materially contributed to resignation.
• Whether the Tribunal erred in treating the refusal as innocuous by equating ‘not unreasonable’ with ‘innocuous’.
• Whether the Tribunal erred in finding that withholding the child’s name could not amount to a ‘practice’ for the purposes of the duty to make reasonable adjustments, on the ground that it could not say Mrs Matchett would so act in all such cases.

Arguments

Appellant (Claimant)

Mr Sugarman argued that where earlier conduct crosses the Malik threshold, has not been affirmed, and materially contributed to the decision to resign, constructive dismissal is made out even if the final act tipping the employee into resignation was innocuous. He submitted the Tribunal erred by treating the ‘innocuous’ nature of the final act as fatal. He also argued the Tribunal conflated ‘reasonable’ conduct with ‘innocuous’ conduct, contrary to Omilaju. On the reasonable adjustment ground, he submitted a PCP need not apply universally; an element of repetition within the handling of the Claimant’s own case could suffice.

Respondent

Ms Wynn Morgan submitted that if the final act relied upon was innocuous, the constructive dismissal claim must fail without need to examine prior conduct. She contended there was no finding that prior conduct influenced the resignation, merely that the Claimant had it in mind. On the reasonable adjustment issue, she argued the Tribunal was entitled to find no practice existed.

Judgment

HHJ Auerbach allowed the appeal on grounds one, two, three, six and eight.

The last straw analysis

The EAT held that constructive dismissal arises where (a) there has been a fundamental breach, (b) which the employee is entitled to treat as terminating the contract, and (c) which materially contributed to the decision to resign. Applying Kaur v Leeds Teaching Hospital NHS Trust [2019] ICR 1 and Omilaju v Waltham Forest LBC [2005] ICR 481, the Judge held that where prior conduct itself amounts to a breach of the Malik term, has not been affirmed, and materially contributed to resignation, constructive dismissal is established even if the final, most temporally proximate act was innocuous. The Tribunal had erred by treating the innocuous nature of the Mrs Sydenham-related conduct as automatically fatal.

Innocuous versus reasonable

The EAT held the Tribunal had wrongly moved from a finding that the Respondent’s conduct was ‘not unreasonable’ directly to a finding that it was ‘innocuous’. Under Omilaju, the question is whether the conduct contributes something, however slight, to the cumulative breach; it need not be unreasonable or blameworthy to do so.

Application to the facts

The Tribunal had already found that the prior conduct influenced the Claimant’s decision to resign and, at paragraph 96.1.5, had found that there was ‘much in the actions of the respondent prior to this that the claimant could have relied upon, individually or cumulatively, to found a breach of the implied term’. The EAT read this as a finding that prior conduct constituted a breach. Given the contents of the letters of 13 and 16 June 2016 and the absence of any conduct from which affirmation might be inferred, no finding of affirmation could properly have been made. The EAT substituted a finding of constructive dismissal.

Fair reason

Given the Tribunal’s extensive findings criticising the Respondent’s conduct, including Mrs Matchett’s desire to maintain control, the governing body’s ignorance of procedures, the mishandling of suspension and grievance, the EAT held no Tribunal could properly find a fair reason for dismissal, and substituted a finding of unfair dismissal.

Discriminatory constructive dismissal

Applying Berriman v Delabole Slate [1985] ICR 546 and Nottinghamshire County Council v Meikle [2004] IRLR 703, the question of whether discriminatory conduct materially influenced the repudiatory breach was remitted to the Tribunal.

Reasonable adjustment – practice

Applying Nottingham City Transport v Harvey UKEAT/0032/12 and Lamb v Business Academy Bexley UKEAT/0226/15, the EAT held that for a ‘practice’ there must be some element of repetition or persistence, but that element may be found within the handling of the individual claimant’s own case. The Tribunal had set the bar too high by requiring that Mrs Matchett would take this approach in ‘all processes of this nature’. The matter was remitted to the Tribunal.

Implications

This decision provides important clarification of the law on constructive dismissal. It confirms that where prior conduct amounting to a fundamental breach has not been affirmed and materially contributed to the decision to resign, the claim succeeds even if the most recent act tipping the employee into resignation was itself innocuous. The Underhill LJ five-question framework in Kaur is supplemented: where the answer to question four (whether the final act formed part of a cumulative breach) is ‘no’, the Tribunal must still consider whether earlier conduct alone amounted to an unaffirmed breach which contributed to resignation.

The decision also reinforces that ‘reasonable’ conduct is not the same as ‘innocuous’ conduct for Omilaju purposes; conduct may be reasonable yet still contribute something to a cumulative breach, and the test for what may contribute is a low threshold.

On reasonable adjustments, the decision confirms that a ‘practice’ under the Equality Act 2010 does not require universal application; persistence or repetition in the handling of the individual claimant’s own case may suffice. This is significant for employees challenging discrete but persistent conduct during internal processes.

The judgment matters to employees, employers, HR practitioners and employment lawyers handling constructive dismissal claims involving cumulative conduct, and those advising on reasonable adjustment claims arising from one-off but persistent decisions in disciplinary or grievance procedures. Its boundaries are fact-sensitive: whether affirmation has occurred, and whether sufficient repetition exists to constitute a practice, remain matters for Tribunal evaluation.

Verdict: The appeal was allowed on grounds one, two, three, six and eight. The EAT substituted findings that the Claimant was constructively dismissed and unfairly dismissed. The question of whether the constructive dismissal was discriminatory, and the reasonable adjustment complaint regarding the withholding of the child’s name, were remitted to the same Employment Tribunal where possible.

Source: Williams v The Governing Body of Alderman Davies Church in Wales Primary School