Mr C Borresen v Prospect Education (Technology) Trust Limited Held at: London South Employment Tribunals — 2024

The claimant had worked at the Academy since 2005 and resigned on 31 May 2023. The tribunal treated the case as one in which the claimant relied on an alleged fundamental breach of the implied term of trust and confidence, and therefore considered whether the respondent’s conduct, viewed cumulatively, amounted to constructive dismissal under section 95(1)(c) of the Employment Rights Act 1996. The tribunal found that most of the allegations over the period 2015 to 2023 were not made out, or amounted at most to ordinary management action, including criticism of performance, role changes, and department meetings.

The tribunal accepted that there were isolated instances of unreasonable behaviour, including that Mr Mitchell could be direct, that he probably said in 2015 to send the claimant to him if he was difficult, that he described a situation in 2017 as poor, and that he shouted at some staff and pupils from time to time. However, it found that these matters did not cross the high threshold for a repudiatory breach of trust and confidence. It also found that the 2017 structural changes did not deprive the claimant of responsibilities or pay, and that the claimant accepted the revised role and later wrote that he was looking forward to the new challenge.

The only finding that the tribunal regarded as a breach of policy was Dr Smith’s decision in April 2023 to check CCTV in order to clarify whether the claimant had arrived in time for a breakfast professional development session and to understand the position about pupils in the corridor. The tribunal found that this was a breach of the CCTV policy and unreasonable, but it was not calculated or likely to destroy or seriously damage trust and confidence, and in any event Dr Smith had reasonable and proper cause because he believed the claimant was claiming entitlement to something he was not due. Looking at the relationship as a whole, the tribunal concluded there had been no fundamental breach, so the constructive dismissal case failed.

On resignation, the tribunal found that the claimant’s departure was not caused by a repudiatory breach. It placed weight on the resignation letter, which said he was "moving onto pastures new" and thanked the school for its support and development opportunities. The tribunal held that the claimant was unhappy about the CCTV investigation but did not resign because of a fundamental breach, and in any event he worked through his notice and remained employed until 28 August 2023. The claim was therefore dismissed in full.