Veitch Penny LLP - Exeter | Crediton, Devon

Case

Tolson v Governing Body of Mixenden Community School
Employment Appeal Tribunal - (16 September 2003)

Issues

The Issues

(1) Unfair dismissal
(2) Constructive dismissal
(3) Contractual terms

Facts

Wendy Tolson was a senior teacher, employed from 1 September 2000 at the Mixenden Community Primary School. From February to April 2002, she was absent from work due to a medical illness.

When she returned to work, the school had a new headmistress. During her absence, changes had been made to the timetable and to Tolson’s responsibilities. Tolson was not happy with this and arranged a meeting with her employer, in which her trade union representative was present. The following day she was signed off sick, and later resigned.

She made a complaint of unfair dismissal against her former employer, on the basis that she was constructively dismissed.

The Tribunal held that there had not, in the circumstances, been a fundamental breach of Tolson’s contract, and dismissed her claim. The Tribunal found that Tolson ought to have utilised the internal grievance procedure instead of arranging a meeting.

Tolson appealed the decision on the basis that the Tribunal had wrongly taken her conduct into account when determining liability, rather that purely concentrating on the conduct of the employer. She submitted that to give any weight to her conduct in determining liability, as opposed to quantum, was incorrect.

Decision

The appeal was allowed.

The sole issue for the Employment Appeal Tribunal to consider was whether the Tribunal had taken an irrelevant factor into account. It found that the Tribunal had done this in this case, but taking into account the allegation that Tolson had failed to follow certain grievance procedures. This was clearly not a relevant factor. The Tribunal should have concentrated on the conduct of the employer alone.

Accordingly, the case would be remitted to a differently constituted tribunal.

Comments

This case clearly demonstrates that the issue to be focused upon when dealing with cases of constructive dismissal.