Constructive dismissal: ET erred by taking into account claimant’s failure to appeal grievance outcome when deciding whether the employer was in repudiatory breach

In Nelson v Renfrewshire Council [2024] EAT 132 the EAT held that the employment tribunal had wrongly taken into account the claimant’s failure to appeal the outcome of her grievance when deciding whether or not the employer’s conduct amounted to a breach of the implied term of mutual trust and confidence. It is the employer’s conduct that is of relevance in deciding the issue of breach and, by finding that ‘there remained an realistic prospect of resolution and a satisfactory outcome at stage 3’ if the claimant appealed the grievance outcome, the tribunal had taken into account an irrelevant consideration.

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