Mr S Kilroy v The Phoenix Academy Trust — 2019

Mr Kilroy was a long-serving teacher who became Acting Principal. The tribunal found that, during the period before and after CIT’s involvement with the Trust, he was invited to resign on a number of occasions, including by Mr Armond and repeatedly by Mrs White. The tribunal held that, viewed objectively, he was correct to think his employer wished to be rid of him, and that this conduct amounted to a breach of the implied term of trust and confidence.

The tribunal accepted that there were reasonable grounds to investigate concerns about artwork and exams. It found the artwork allegations could not be proved because the former Chair, Mr Bush, was not available, and it accepted that the exam-related matters justified investigation and a disciplinary hearing. However, it was not clear that Mr Kilroy’s explanations were seriously considered at the hearing, no further investigation followed despite the chair indicating there would be one, and the appeal outcome was described as contradictory and illogical. The dismissal was communicated orally on 23 July 2018, later confirmed in writing, and was followed by an appeal that led to reinstatement with a final written warning.

On the central issue of affirmation, the tribunal held that Mr Kilroy did not affirm the contract by pursuing the appeal process. It found that he made plain on several occasions that he did not intend to return, including in the appeal process, in his solicitors’ letter of 19 September 2018, and in the claim form. The tribunal concluded that he resigned primarily because of the delays in the disciplinary process and because of the objectively justified impression that the Trust wished to be rid of him, so the claim of constructive unfair dismissal succeeded. Remedy was not determined in this judgment; the tribunal directed that the parties should seek to agree it or proceed to a remedy hearing, and noted that the claimant’s mitigation statement was unlikely to satisfy it.