Background
Mr Saleh was employed by Singletrack Systems Ltd as a solutions engineer from October 2017 until he resigned on 4 July 2021. He is diagnosed with autism spectrum disorder. The employer raised performance concerns beginning in May 2019, partly because Mr Saleh was working for another company in his spare time. Following his return from furlough in July 2020, he was placed on a performance improvement plan.
On 16 September 2020, Mr Saleh submitted a 24-page written grievance raising issues including the furlough decision, the PIP process, training, pay, and allegations against three managers. The grievance was considered by the board chairman Michael Berman, who upheld few complaints but made recommendations favourable to Mr Saleh. When Mr Saleh appealed the grievance outcome, the board appointed outside consultant Peter Segal to review the appeal. Mr Segal’s report, issued on 19 April 2021, rejected the appeal. Mr Saleh questioned Mr Segal’s authorship and alleged bias.
In June 2021, the company referred Mr Saleh to an occupational health provider with expertise in supporting neuro-diverse adults. When Mr Saleh repeatedly refused to provide requested information, the company warned he would be assessed without it. He resigned on 4 July 2021 and subsequently claimed constructive dismissal based on 14 complaints, alleging the employer’s conduct cumulatively breached the implied term of mutual trust and confidence.
The Court’s Holding
The Employment Appeal Tribunal dismissed all three grounds of Mr Saleh’s appeal. On the first ground—that the Employment Judge’s refusal to order further disclosure of drafts of Mr Segal’s report was perverse—the EAT found the judge’s reasons made good sense and there was no question of “overriding” a previous disclosure order, which had already been complied with. The EAT also noted that disclosure of communications between Mr Segal and the company’s solicitor would not have altered the clear findings that Mr Segal was the sole author and that his conclusions were his own and supported by the evidence.
On the second ground concerning redacted Slack messages, the EAT held the judge’s handling was not perverse. The redaction issues had been raised at the outset of the hearing and the parties had confirmed on day 2 that they had agreed appropriate redactions. The judge was entitled to proceed on that basis. Further, the specific message at issue (“Elliot was your Ophelia”) could not form part of Mr Saleh’s resignation conduct because he was unaware of it at the time.
On the third ground, although the judge could have been more explicit in setting out the implied term of trust and confidence and confirming he was applying a cumulative analysis, the judgment made clear he understood the case and rejected the notion that the employer’s conduct breached that term. The judge’s detailed factual findings—that the company had legitimate performance concerns and managed them in a “supportive, effective, reasonable and considered way”—would not support a finding of breach on any cumulative view.
Key Takeaways
- The implied term of trust and confidence may be breached by a course of conduct comprising multiple acts and omissions viewed cumulatively, but the employer’s conduct must be of a character likely to “destroy or seriously damage the essential relationship of trust and confidence between the parties.”
- In employment tribunal hearings involving voluminous disclosure, case management decisions to limit further disclosure are not perverse merely because earlier disclosure orders existed; proportionality and the interests of justice are relevant considerations.
- Where parties to litigation agree on appropriate redactions to trial bundles at the outset of proceedings, the tribunal may proceed on that basis without reopening redaction issues during cross-examination, provided the underlying evidence remains available through witness questioning.
- Employment judges need not express every analytical step in written judgments; an appellate court will infer the correct legal framework from the judgment as a whole where the factual findings clearly support only one outcome.
Why It Matters
This decision clarifies the application of the implied term of trust and confidence in constructive dismissal claims. While employers must not engage in conduct designed or likely to destroy the relationship of trust, the term does not prevent legitimate performance management, reasonable disciplinary procedures, or decisions to manage an employee’s conduct through formal processes. The case confirms that employment judges have discretion in case management and need not order every piece of evidence requested simply because it might be tangentially relevant.
For employers, the decision validates structured performance management, including PIP processes and grievance procedures, even when an employee ultimately resigns. For employees claiming constructive dismissal, the decision illustrates that isolated management decisions or communications not known to the employee at the time of resignation cannot form the basis of a breach claim, and that cumulative conduct analysis requires showing a course of behaviour of sufficient gravity to undermine the trust relationship fundamentally, not merely disagreement with management decisions.