Appeal by an employee ('W') from an employment tribunal's rejection of her complaint of constructive unfair dismissal against the respondent employer ('C'). W's complaint was that she had been subjected to harassment and unreasonable pressure by her manager in relation to the manner in which she worked. The tribunal held that the manner in which W's manager criticised her in public amounted to a breach of the implied term of trust and confidence, but that the breach was not sufficiently serious to amount to a repudiatory breach of W's contract of employment. W submitted in her appeal that: (i) every such breach went to the root of a contract of employment and entitled an employee to consider themself as constructively dismissed; and (ii) the tribunal had misdirected itself by introducing a test in relation to the seriousness of the breach. W further submitted that the tribunal's decision could not be said to be unarguably correct, despite the alleged misdirection, having regard to the facts. C submitted in reply that there was a test of seriousness within the issue relating to the implied term.

HELD: (1) The implied term of trust and confidence in a contract of employment was first recognised in its modern form in Courtaulds Northern Textiles Ltd v Andrew (1979) IRLR 84. The test for whether it had been breached had remained the same ever since and encompassed two types of conduct: (a) conduct likely to undermine the trust and confidence required if the employment relationship was to continue; and (b) conduct which itself amounted to a repudiatory breach entitling the employee to resign. A finding that there had been conduct amounting to a breach of the implied term would inevitably mean that there had been a fundamental or repudiatory breach that necessarily went to the root of the contract as the Employment Appeal Tribunal had recognised in Woods v W M Car Services (Peterborough) Ltd (1981) IRLR 347. (2) In the present the case the tribunal had misdirected itself by separating the actual words spoken from the circumstances in which the reprimand took place. In doing so the tribunal appeared to consider the seriousness of the breach, straying from the proper formula. (3) It could not be said that the decision was plainly and unarguably correct because, on the facts and given the misdirection, the matter was unclear. Therefore, the case had to be remitted to a fresh tribunal for reconsideration.
Appeal allowed. Case remitted.

Miss R Tuck instructed by USDAW (Manchester) for W. Mr P Woodhouse (solicitor) instructed by Cartwright (Bristol) for C.

LTL 1/11/2001 : (2002) IRLR 9

Document No. AC8800908