Appeal No. UKEAT/0188/08/CEA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
                                                                                                    On 30 June 2008
	                      Judgment handed down on 4 July 2008

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
MRS R CHAPMAN
MR A HARRIS

MR B J CLARIDGE	APPELLANT

DALER ROWNEY LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS CATRIN LEWIS
(of Counsel)
Instructed by:
Mr John Harman
Legal Adviser
Bracknell Citizens Advice Bureau
40-42 The Broadway
BRACKNELL
Berkshire
RG12 1AG	
For the Respondent	MR JONATHAN NAYLOR
(Solicitor)
Messrs Shoosmiths LLP Solicitors
Apex Plaza
Forbury Road
READING
Berkshire
RG1 1SH	

SUMMARY

UNFAIR DISMISSAL:  Constructive dismissal

The Employment Tribunal held the employee had not been constructively dismissed.  One of the complaints related to defects in the handling of the grievance procedure.  The Tribunal held that they considered that the employers had acted unreasonably, but that applying the principle adopted in Abbey National plc v Fairbrother [2007] IRLR 320 the grievance had been handled in the way a reasonable employer could have dealt with it and accordingly there was no repudiatory breach of contract.
The EAT held that this was a conclusion which the Tribunal was entitled to reach on the evidence. Accordingly, the appeal was dismissed. Observations on the reasoning in the Fairbrother case.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	This is an appeal against the decision of the Employment Tribunal in which it concluded that the claimant had not been constructively dismissed. We will continue to refer to the claimant by that title, although he is the appellant before us.

2.	The claimant was employed by the respondent for over 34 years. He joined them in 1956 and had loyal and unblemished service thereafter until he resigned from the company in August 2007. He had been promoted in 2002 and had monthly salary status from 2004. 

3.	The employers were manufacturers of paint. They had been a family business operating throughout the UK, but were purchased by new investors in February 2005. Following that purchase a number of changes were made in the operation of the business including the Bracknell factory where the claimant worked. 

4.	The changes in Bracknell included restructuring, and consequential dismissals for redundancy. The claimant’s own post was reduced from that of supervisor to team leader, and he accepted that alteration. 

5.	The particular incident which set in train the resignation in this case was on Friday 2 June 2006. Mr Page, the Production Manager, was cutting grass. It seems an odd task for somebody in that position, but it is just one aspect of the attempt to make the business viable, the gardener having been made redundant. Mr Page saw the claimant leave the Production line more than once. On one occasion he brought a colleague with him into the garden. It appeared as if something in the garden had caught the claimant’s attention. Mr Page was irritated, and considered it showed a lack of leadership qualities. He resolved to speak to the claimant about it the following Monday.

6.	There was a brief meeting of between 10 and 20 minutes the following Monday morning in the office of another staff member, Ms Carter the senior personnel officer. There was a dispute as to what occurred at that meeting.  The Tribunal found that Mr Page had expressed himself in what they described as “sharp and robust terms”. He warned the claimant that he had to “buck up his ideas” and that if he did not do so he might eventually be demoted. 

7.	The claimant’s case was that he had been told in terms by Mr Page that he was being demoted, either immediately or within two weeks, and that this was in breach of the disciplinary rules and his contractual rights.  The Tribunal expressly rejected this account and gave reasons for that conclusion: the evidence suggested that management was cautious when dealing with the workforce; Mr Page had no authority to demote the claimant and would not have assumed it of his own initiative; and Ms Carter, as the senior HR professional, would not have permitted this in any event.

8.	The claimant asked to be granted leave for the rest of that day. He returned to the premises in the afternoon, saying he had been diagnosed with depression and prescribed Prozac. He self-certificated for the remainder of the week. 

9.	The claimant’s absence was reported to more senior management. They were faced with a particular difficulty because another supervisor was on long term sick leave. Both the claimant and this other employee worked in Production, which was the area where the company was under greatest pressure. Mr Paradis, a senior manager, therefore authorised the internal advertisement for a post to cover the claimant’s absence. A Ms Dzervitis was appointed. 

10.	The appointment was not stated in the advertisement to be temporary, or acting up, or simply to cover for the claimant’s absence. However, the employers said that it had been made plain to Ms Dzervitis that it was merely a short term appointment, and she remained an hourly paid member of Production staff without any change in her terms and conditions of employment. 

11.	The Tribunal accepted that the advertisement and the announcement were unsatisfactory in failing to make that clear, but this was an honest error and oversight. The Tribunal stated in terms that they did not attach any greater weight to it than that.  The Tribunal also noted that the claimant continued to receive his salary as a team leader when off sick which was consistent with the employer’s account.

12.	In the course of June 2006 the claimant issued three grievances. First, he wrote to Ms Carter saying that he could not be demoted without reason. Then he raised a formal grievance with Mr Paradis, again “regarding the decision to demote me …..to a new lower paid position”. That was in mid June. Finally, by letter dated 27 June, again to Ms Carter, he submitted a lengthy complaint in relation to the meeting of 5 June and his alleged demotion.  Most of the grounds were premised on the assumption that he had indeed been demoted in breach of procedures and any principle of fairness.

13.	The claimant was offered a meeting in response to his grievance on 13 or 14 September. On 12 September a representative of a mental health charity, Ms Pike, commenced correspondence on behalf of the claimant saying that he was not well enough to attend a meeting on either of those dates. Ms Pike then subsequently made further requests for the meeting to be delayed. Throughout this period the claimant remained certificated with depression. 

14.	Then the claimant asked for a meeting in the New Year. The Tribunal recount that there was some misunderstanding about that letter which in a material particular was ambiguous. The Tribunal held no-one responsible for it, but it resulted in a further delay of some six weeks. 

15.	The grievance meeting was finally held on 26 February. Mr Paradis was accompanied by Ms Carter, and the claimant by a colleague, Mr Hibbs. Mr Paradis confirmed that the claimant had not been demoted. He told the claimant that Ms Dzervitis was merely acting in his absence.  However, he was not prepared to offer the claimant voluntary redundancy terms which the claimant was seeking.  The meeting was apparently left on the basis that Mr Paradis would investigate further.  We confess that we are left in considerable uncertainty about precisely what was left to be investigated since the core of the grievance, namely the alleged demotion, had been dealt with.  Perhaps it was the issue of severance pay, but that is no more than speculation.

16.	During the course of the meeting there was an agreement between Mr Hibbs and Ms Carter to provide each other with copies of a note they had made of the meeting. Ms Carter was under the impression that this note was to be exchanged simultaneously. That caused a delay because Mr Hibbs was unwell and was not able to exchange on the date originally agreed, which was in fact very shortly after the hearing.

17.	  There was then an exchange of correspondence about this between Ms Carter and the claimant.  This resulted in the claimant being told he could attend a second meeting with Mr Paradis, at which Mr Paradis would give the decision on the grievance, and that Ms Carter would exchange notes then. The claimant did not want to do this. He wished to consider the notes before meeting with Mr Paradis. The Tribunal noted that it was really quite unnecessary to have an exchange of notes, and that management should have provided them at the earliest opportunity.  However, they did accept that it was legitimate for Mr Paradis to want to deliver the outcome of the grievance at a meeting face to face rather than in correspondence, even although this was not strictly required by the relevant procedure. 

18.	After further considerable delay Mr Paradis wrote a short letter in July, informing the claimant that his grievance had not been upheld because he had not been demoted. By that time the claimant had taken advice from the CAB and refused to attend a further meeting.  There has been some complaint about the detail of that letter, but it is not clear precisely what more there was to say.

19.	It was in response to this rejection of the grievance that on 2 August the claimant tendered his resignation. He was given a week to reconsider his position by Ms Carter, but he did not do so and lodged his claim for unfair dismissal. 

20.	The basis of the constructive dismissal claim is that the grievance had not been dealt with properly, nor within a reasonable or timely fashion. There were a number of elements to this complaint. First, the claimant argued, as he had before Mr Paradis, that Mr Page had actually demoted him.  He also alleged that the employers had deliberately procrastinated in dealing with the grievance.  The Tribunal rejected both these matters.  Finally, he complained about the delays in the grievance process, and in particular the period from the hearing in February until the decision was given in July. His case was that this amounted to a breach of the duty not, without reasonable and proper cause, to undermine the trust and confidence in the employment relationship.

21.	 The Tribunal was critical of the employers with respect to this final ground. Management’s position had always been that the claimant had not been demoted, but they never took what the Tribunal termed a ‘pro-active role’ in resolving the problem. Had the claimant been given the reassurance early on that he had not been demoted, that might have calmed matters. The only explanation Mr Paradis could give for not immediately alerting the claimant about that was that it was not in accordance with the company’s formal grievance procedure. 

22.	The Tribunal accepted that the delay from 5 June to 26 February was explicable, given the chronology of events, and could not be laid at the door of the employers. They did not, however, accept that the delay from 26 February to 16 July was acceptable or that it was for a good reason.  The Tribunal rejected a contention that the respondents had deliberately placed a bar in seeking to determine the grievance, but nonetheless they felt that there was undue delay during that period. 

23.	The Tribunal then specifically referred to the decision of the EAT in Abbey National plc v Fairbrother [2007] IRLR 320 and in particular, paragraph 36 of that decision in which Lady Smith said this:
“Accordingly, in a constructive dismissal case involving resignation in the context of a grievance procedure … it is not only appropriate but necessary to ask whether the employer’s conduct at the grievance procedure was within the band or range of reasonable responses to the grievance presented by the employee. We would add that we are not persuaded that it is appropriate to separate out each part of the grievance procedure to see whether it was reasonably conducted or not … The conduct of a grievance procedure requires to be looked at as a whole. Only if it has been conducted in a manner in which no reasonable employer would have conducted it can it be said that he did not have reasonable and proper course for his conduct.”

24.	The Tribunal then expressed its conclusions, as follows (paras 26-29):
“Our view of the conduct of this grievance by the Respondent was that overall, there was a failure by management to take a thoughtful, proactive overview of how to solve these matters as a human employment problem.
There was a failure to keep the matter under review in the same spirit, and had either of those things been done, it is perfectly possible that at a very early stage the Claimant would have received reassurance that he had not been demoted, coupled of course with the offer to proceed to a grievance meeting as was his unqualified right.
However, applying the test stated by Lady Smith, we certainly cannot fault the conduct of the procedure up to 26 February, which seemed to us to be conducted with reasonable and proper cause, and paying proper deference to the reasons for postponement requested in particular by the Claimant in the light of his health.
We have much greater difficulty in the period thereafter. It must by then have been obvious to Mr Paradis that there could only be one conclusion to this grievance, and having met and discussed the matter with the Claimant, he must surely have been aware of the necessity for a prompt resolution. The matter became bogged down in procedural points which were of little consequence, and which could readily have been overcome.
Had the EAT not delivered the Fairbrother decision in the terms which it did, we would have considered that the claim in relation to the period after 26 February was likely to succeed. However, we cannot go so far as to say that the manner in which the grievance was conducted in that period satisfies the Fairbrother test, in as much as the test is one of how no reasonable employer would have conducted the matter.”

25.	Accordingly, although personally critical of the employer’s conduct, the Tribunal felt constrained by the Fairbrother case to conclude that the there had been no constructive dismissal.

26.	The employers also argued that the claimant had not resigned in response to the alleged fundamental breach but because he was disappointed not to be offered redundancy terms.  The Tribunal said that this was a complex issue which they did not need to resolve in view of their finding that there was no dismissal.

The significance of Fairbrother
27.	This case is central to one of the issues in this appeal. One of the grounds is that it was misapplied, and therefore it requires some consideration. The problem which the Fairbrother case addressed is this. Classically, the test for determining whether there has been a repudiatory breach of contract sufficient to entitle the employee to leave and claim constructive dismissal is an objective one to be determined by the Tribunal itself: see Pedersen v Camden London Borough Council [1981] ICR 674.   

28.	However, it is equally well established that the test in unfair dismissal cases for determining whether an employer has acted reasonably in all the circumstances is whether the conduct falls within the range which a reasonable employer might consider to be appropriate (the “range of reasonable responses” test: see Sainsbury’s Supermarkets v Hitt [2003] IRLR 23.  If that test is resolved by the Tribunal assessing whether it considers the conduct to be reasonable, the Tribunal is improperly substituting its view for that of the employer.

29.	As the EAT recognised in Fairbrother, the two tests could give rise to a different result in essentially the same set of circumstances, depending upon whether the dismissal is actual or constructive.  If the employer dismisses the employee and conducts the dismissal procedure unsatisfactorily there will be an unfair dismissal only if the way in which the procedure is handled falls outside the range of reasonable responses. If, however, the employee lodges a grievance in circumstances where the failings by the employer are similar, any unfair dismissal claim will have to be the result of the employee resigning and claiming constructive dismissal. In analysing that issue, the Tribunal makes its own assessment of whether the conduct is so unreasonable as to amount to a repudiatory breach of contract. 
 
30.	Where the repudiatory conduct relied upon is the breach of the term not to undermine or seriously damage the duty of trust and confidence - as in this case, and as it will usually be where the claim is the unreasonable operation of the grievance procedure - then the finding of the Tribunal that there has been a constructive dismissal must mean that they have taken the view that the conduct of the employer falls so far below that which they consider reasonable, that it entitles the employee to say that he should not be required to remain in employment. To reach that finding requires a very significant breach. 

31.	However, logically a different result might arise in circumstances where the procedural defect is located within the context of a dismissal by the employer because of the possibility that even though the Tribunal’s own view, looking at the matter objectively, is that the conduct is unreasonable, they recognise that it would be open to a reasonable employer to take a different view.  In other words the conduct may fall within the range of reasonable responses.  That of course is precisely the conclusion of the Tribunal in this case.

32.	The EAT in Fairbrother understandably considered that it was unacceptable to have a different result in an unfair dismissal claim where the essential complaint was the same, merely because of the way in which the dismissal was characterised. We entirely agree that it is not acceptable that the law should characterise one dismissal as unfair and another as fair depending upon the often fortuitous fact of who actually brought the relationship to an end, and the result should be avoided if there is a proper legal way of achieving that.

33.	In Fairbrother Lady Smith sought to resolve the difficulty in this way.  She first analysed the judgment of Lord Steyn in the seminal case of Malik v BCCI SA [1999] IRLR 

462(HL), and broke down the duty of trust and confidence as follows (para 30): 
“….conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it 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 appear to us to be:
1. what was the conduct of the employer that is complained of?
2. did the employer have reasonable and proper cause for that conduct? 
If he did have such cause, then that is an end of it. The employee cannot claim that he has been constructively dismissed. If the employer did not have such cause, then a third question arises:
3. was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?”

34.	She then sought to bring the two situations into harmony by focusing on the second limb of the test, asking whether there was reasonable and proper cause for the employer’s conduct: 
“…although the point at which reasonableness considerations arise differs as between the two types of case, the point which is being addressed seems to be the same. It is that of whether or not, when conducting himself towards his employee in a manner which has resulted in the detriment of his job coming to an end, the employer had reasonable and proper cause for his conduct.”

35.	Applying this approach, she concluded that the appropriate test to adopt when determining whether there was a constructive dismissal was the range of reasonable responses test: see the passage from her judgment reproduced above at para.22.  In reaching that conclusion she was following and applying more generally the decision of the EAT (HH Judge McMullen presiding) in Hamilton v Tandberg Television Ltd [2002] EAT 65/02.

36.	We confess to having some reservations with that analysis of the juridical basis of the principle. If the employer is acting in a way which the Tribunal considers to be unreasonable, we have some doubt as to whether it can be said that he has reasonable and proper cause for his conduct simply because a reasonable employer might have acted in that way.  

37.	Looking at the matter objectively, the Tribunal itself cannot consider that he has reasonable and proper cause since the premise is that the Tribunal considers the conduct to be unreasonable. An employer cannot have reasonable and proper cause to act unreasonably.  So the result can only be achieved if the Tribunal eschews an objective test at the second stage and applies the range of reasonable responses test: a reasonable employer might consider that he has reasonable and proper cause to act in a way which the Tribunal personally considers to be unreasonable. But adopting that analysis would seem to be inconsistent with the traditional view that it is for the court itself to determine whether there is a breach of contract.  That would apply to all three stages in the Malik implied term.

38.	We would suggest that an alternative basis for achieving harmony is to focus on the third limb of the test. It is necessary that the conduct must be calculated to destroy or seriously damage the employment relationship. The employee must be entitled to say ‘You have behaved so badly that I should not be expected to have to stay in your employment’. It seems to us that there is no artificiality in saying that an employee should not be able to satisfy that test unless the behaviour is outwith the band of reasonable responses. 

39.	It is well established that unreasonable conduct alone is not enough to amount to a constructive dismissal: see Western Excavation Ltd v Sharpe [1978] IRLR 27.  As that case makes clear it must be unreasonable conduct amounting to a breach of contract, and in this context of the breach of trust and confidence term that means that it should fundamentally undermine the employment relationship. If an employer has acted in a way in which the Tribunal considers a reasonable employer might act, then we would suggest that it cannot be a proper inference that an employee is entitled to say that nonetheless this was so fundamental a breach of the employer’s obligations towards him that he should not be expected to remain in employment.  Once the Tribunal concedes to itself that there may be more than one view as to whether the conduct is sufficiently unreasonable, that undermines its conclusion that the employment relationship has been sufficiently damaged.

The grounds of appeal.
40.	We turn to the grounds of appeal.  These can be brought under three heads. The first is that given the Tribunal’s finding that there was unreasonable delay from 26 February until 16 July, the Tribunal was not entitled to conclude that a reasonable employer might have dealt with the grievance in the way in which this employer did.  It misunderstood the decision in Fairbrother in finding a dismissal in circumstances where it had concluded that the dismissal was unreasonable.

41.	The second ground was advanced in the skeleton argument but not pursued orally.   It is submitted that the failure properly to redress the grievance is a breach of fundamental importance and entitled the employee to resign, in accordance with the decision in W A Goold (Pearmark) Ltd v McConnell & Ors [1995] IRLR 516.  In that case the EAT (Morison P) held that there was an implied term of the employment contract that “the employer would reasonably and promptly afford a reasonable opportunity to their employees to obtain a redress of any grievance they may have.”  If and insofar as the Tribunal was suggesting that this decision had been affected by the Fairbrother decision, they were wrong.

42.	Third, the case of Fairbrother was in any event not applicable here. The delay in this case was the final straw which caused the employee to leave, and there is authority that Fairbrother has no application in such circumstances: see the decision of the EAT (HH Judge Clark presiding) in GAB Robins UK Ltd v Triggs UKEAT/0111/07 para.30.

43.	The employers contend that the Tribunal did not err in law. They were entitled to conclude that such failings as there were in the handling of the grievance did not overall render the procedure fundamentally defective. A decision of this kind is classically for the Employment Tribunal and unless the decision is perverse, the EAT cannot interfere: see e.g. Woods v W M Car Services (Peterborough) Ltd [1982] IRLR 413. 

44.	The Tribunal had directed itself perfectly properly. It had recognised that the question was whether the manner in which the grievance procedure had been conducted had undermined trust and confidence in the employment relationship, and concluded that it did not. It recognised the need for a prompt redress of grievance, because it expressly referred to a submission that “by failing to address the claimant’s grievance in a reasonable or timely fashion, the respondent constructively dismissed the claimant.” The clear implicit finding was that although there had been delay, and some criticism of the employer was justified, the nature and degree of the defects was not sufficiently fundamental to constitute a breach of this term.

45.	There was no inconsistency between the statement that the Tribunal considered that there was no reasonable ground for the delay and the finding that a reasonable employer might have conducted the grievance in the way in which this employer did.  The Tribunal commented on the cautious approach of this particular management.  In this case there had been an agreement to exchange notes, and the claimant had never suggested that the agreement need not be honoured, or that the employers should provide their notes first.  Indeed, the claimant was insisting on ten days notice of the meeting after the notes had been exchanged.  The decision was readily comprehensible on the basis that the Tribunal themselves did not think the second period of delay was reasonable, but accepted that a reasonable employer might take a different view given how matters had developed.

46.	Finally, it was denied that this was a final straw case at all. The claimant did not rely on any issues other than the handling of his grievance. In those circumstances, the decision in Fairbrother was the established and appropriate test which the Tribunal had to follow. This was not a case where there were allegations of other quite distinct breaches of the employment contract which the Tribunal had considered and analysed.

Conclusion
47.	The first ground of appeal is essentially a perversity ground.  We remind ourselves that it is for the Tribunal to assess whether the manner in which the grievance was handled fell outwith the band of reasonable responses.  A finding of perversity is notoriously difficult to sustain: see the observations of Mummery LJ in Yeboah v Crofton [2002] IRLR 634. 
    
48.	There is no doubt that this grievance could have been handled better.  It is difficult to understand why the employers did not simply say at the very beginning that the claimant had not been demoted, whatever he might have thought. That may not have resolved all the claimant’s concerns, but it would have dealt with the central one. It would have notified the claimant that in reality he had nothing to be aggrieved about.   

49.	However, the Tribunal appear to have accepted that the employers were entitled to deal with the grievance in the formal way that they did. They noted that management were cautious and tended to do things by the book.  The Tribunal examined the conduct of the procedure itself.  They found that the delays up to the end of February were explicable, and although they were critical of the delays thereafter, these resulted largely from the requirement to exchange notes.   

50.	The Tribunal, in our view justifiably, thought that this exchange was unnecessary and were critical of the employers for not speedily communicating the grievance decision whether the notes were exchanged or not.  However, that was a mutual arrangement and there was some basis for the employers assuming that both parties would comply with it.  Ms Carter had made available her note and they could have been exchanged very much earlier had the employee been willing and able to make the exchange.  He did in fact have the note produced by Mr Hibbs and it is not clear what caused the delay in the exchange.  

51.	The Tribunal found it understandable why Mr Paradis wished to give his decision to the claimant in person. Furthermore, on the central aspect of the grievance, namely that there had been an unlawful demotion, Mr Paradis had assured the claimant that this was not so.  As we have said, we are not sure what further investigations were envisaged following that meeting, but we do not see how they could have related to the central aspect of the grievance.

52.	In these circumstances, we are not willing to say overall that the faults of the employer were so egregious that no reasonable employer could have acted in that way.  We think it a reasonable inference that the Tribunal, whilst personally critical of the handling of the grievance, has accepted that a reasonable employer might consider that once the mutual agreement to exchange notes had been made, matters should thereafter be conducted in accordance with that agreement, especially since the claimant at no stage suggested otherwise.  Indeed, he seemed to think that it was important for him to obtain the notes before seeing Mr Paradis again.

53.	  It is our unanimous view that this did not involve a misdirection or misunderstanding of Fairbrother.  As we have shown, the very basis of that case is to demonstrate that even where the Tribunal concluded that in its view the employer has acted unreasonably, that is not of itself necessarily enough to establish a constructive dismissal.  In a case like this where the alleged breach results from a course of conduct, the question is whether the conduct fell outside the range of reasonable responses.  We think that Tribunal was entitled to find that it did not, and this was not a perverse decision. We recognise that other tribunals might have taken a different view, but the only issue for us is whether this Tribunal reached a conclusion it was entitled to reach.

54.	For similar reasons, we cannot conclude that it was a breach of the duty to redress the grievance promptly.  Plainly there can be no breach of that duty if there is an explanation for what might otherwise be unacceptable delays.  This case is not like Goold where the employers did not have a grievance procedure and took no steps at all to seek to resolve a pressing grievance affecting the employees’ remuneration.  In this case steps were taken and for a variety of reasons, some to do with the employer and some with the employee, the grievance was not heard as promptly as it ought to have been.  However, it is not any and every delay that will involve a breach of the Goold term.  It must be sufficiently fundamental to amount to a repudiatory breach.

55.	In any event we do not accept that Goold and Fairbrother are in conflict.    There can be no different result in law depending upon whether the relevant implied term is identified as a duty to hear grievances promptly, or a duty not to conduct the procedure with such delay that it undermines trust and confidence in the employment relationship. A tribunal must focus on substance, not form.  The hearing will therefore be sufficiently prompt if in all the circumstances a reasonable employer could have conducted the procedure as the respondent employer did.

56.	We turn to the third ground of appeal. The submission is that the decision in Fairbrother should be distinguished.  In Robins the EAT held that the analysis in Fairbrother did not apply where the complaint about the handling of the grievance procedure was simply the last straw in a series of complaints about the behaviour of the employer.  The claimant submits that here the final straw was that the letter did not deal with all the issues raised in the grievance, and it followed the period of delay to which we have made reference.

57.	With respect, we entirely agree with the analysis in Robins. An incident which gives rise to the last straw may be really quite trivial. It is only necessary that it is in some contributes to the overall pattern of behaviour which is the subject of complaint.  It need not even have to be an unreasonable or blameworthy act: see London Borough of Waltham Forest v Omilaju [2005] IRLR 35. It would be wholly inconsistent with that principle to require a “last straw” complaint about the handling of a grievance to meet the test for a repudiatory breach laid down in Fairbrother. 

58.	Were this a last straw case, we would accept that Fairbrother is distinguishable. However, we entirely agree with the respondents that this is plainly not such a case. The claim is not that there were a series of incidents and that the handling of the grievance was the final issue that caused the employee to consider he had had enough. The complaint about the handling of the grievance lay at the heart of the constructive dismissal claim. Indeed, once the Tribunal had rejected the claims that there had been an unlawful demotion and that there was no deliberate policy of procrastination, it was the only alleged breach left.

59.	It is not legitimate to seek to break up the handling of the grievance into a number of different stages and to allege that the defect at the final stage constitutes a last straw. The procedure must be seen as a whole, as the Court of Appeal emphasised with relation to disciplinary procedures in Whitbread v Mills [1988] IRLR 501, which was followed by the EAT in Fairbrother itself with respect to grievance procedures (para 36).  In our judgment the claimant is seeking artificially to bring himself within the protection of the Robins principle.

Disposal.
60.	We are unanimously of the conclusion that the decision was one which the Employment Tribunal was entitled to reach, and it displays no error of law.  It follows that the appeal fails.