EAT on 12th January 2007 reported at [2007] IRLR 320
NOTES

  • Abbey National Plc v. Fairbrother EAT on 12th January 2007, reported at [2007] IRLR 320
  • the full text of this judgment is available free of charge on the BAILII website

    Representation:-

  • Mr R Powell instructed by Messrs DLA Piper Rudnick Gray Cary UK LLP, Solicitors, Victoria Square House, Victoria Square, Birmingham B2 4DL for Abbey National
  • Mr G Hodkinson (Representative), Citizens Advice Bureau Specialist Support Unit, The Development Centre, Coxwell Avenue, Wolverhampton Science Park, Wolverhampton WV10 9RT for Mrs Fairbrother
    Authority for the propositions that:-

    1. conduct by an employer said to destroy the implied term of trust and confidence inherent in the employer/employee relationship (and so entitling the employee to resign and claim constructive dismissal ) will not do so if the employer had reasonable and proper cause for the conduct in question. Accordingly, the questions that require to be asked in a constructive dismissal case are

      • what was the conduct of the employer that is complained of?
      • did the employer have reasonable and proper cause for that conduct? If so then that is an end to it and the employee cannot claim that he has been constructively dismissed. If not, a third question arises:-
      • was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?

    2. conduct which destroys or seriously damages the trust and confidence inherent in the employer/ employee relationship does not automatically amount to a breach of the implied term contractual term of trust and confidence.

    editor's notes:

  • The judgment in this case should be read in conjunction with the judgment in Barratt v Accrington & Rosendale College EAT 2007 , decided on the same day by the same EAT panel and dealing with similar issues.
  • If the 3 stage breakdown noted above is to be used care must be taken to apply the "range of reasonable responses open to a reasonable employer" test at the 3rd stage and not at the 2nd stage (see Claridge v Daler Rowney Ltd EAT 2008 ICR 1267 on 4th July 2008).
  • In a subsequent case the EAT ruled that the "range of reasonable responses test" plays no part in establishing whether there has been a fundamental breach of contract such as to support a claim of constructive unfair dismissal - see Bournemouth University v Buckland EAT 2009 IRLR 606. This EAT ruling was upheld by the Court of Appeal (see Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121).

  • For relevant general notes see Implied terms in employment contracts and/or Constructive dismissal/a general note


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    prepared April 2007