From time to time employees argue that their employer has destroyed the trust and confidence implied into the employment contract. Sometimes the employee in that situation will resign and claim constructive dismissal, together with considering themselves discharged from ongoing post-termination restrictions.
What happens if an employee raises a grievance about the situation? Does that mean the employee no longer considers the breach serious enough that they can resign? By raising a grievance, is it self-evident that they don’t consider the relationship irretrievably broken down such that they are affirming the continuation of the contract?
Gordon v J & D Pierce (Contracts) Limited
The claimant had been employed by the Respondent as a Commercial Manger from July 2008 until he resigned in April 2019. The Respondent operates in the construction industry providing structural steelworks for buildings in various projects.
A cash flow meeting took place, attended by the Claimant and others, in February 2019. A further meeting was scheduled the following day to address some confusion on the position of a particular project. The Claimant prepared the relevant paperwork, but on the morning the second meeting was due to take place the Claimant received a number of emails from Mr Pierce of the Respondent, which he found to be aggressive and intimidating. This made the Claimant apprehensive about attending the meeting but he did take the paperwork to Mr Pierce’s office and put it on his desk. Mr Pierce described the manner in which the Claimant put the documents on his desk as throwing or tossing, which he saw as dismissive and disrespectful. The Claimant then left the office and did not attend the meeting as requested.
A short time later, the Claimant was informed that he was suspended with immediate effect due to his refusal to attend the meeting.
The Claimant was then engaged in a disciplinary procedure which resulted in a final written warning to be held on the Claimant’s record for 12 months. The suspension was lifted and the Claimant was expected to return to work in March 2019. The Claimant appealed, raised a grievance in relation to alleged bullying by Mr Pierce and remained away from work signed off sick. At the same time, a new role of Senior Commercial Manager was created above the Claimant and other potential disciplinary issues were being investigated by the employer. The Claimant added each of these to his grievance.
The Claimant resigned from his role on 9 April 2019 by letter, relying on the incidents which were the subject of his grievance. The Claimant brought a claim for constructive unfair dismissal.
The Employment Tribunal rejected his claim on a number of grounds. Practically, the ET found that there wasn’t a fundamental breach of contract by the Respondent entitling the Claimant to consider himself constructively dismissed. More interesting, the ET found that as the Claimant had engaged with the Respondent’s internal grievance processes in relation to the matters relied on as a breach of contract, he had waived the potential breaches and affirmed the contract of employment. By continuing to seek resolution, the Claimant missed his chance to resign and claim constructive dismissal.
The Claimant appealed to the Employment Appeal Tribunal.
The EAT rejected the appeal.
Generally, the EAT found that the ET was entitled to find that there had not been any breach of the implied term of mutual trust and confidence and no errors of law had been made.
On the question of affirmation though, the EAT disagreed with the reasoning of the ET. The EAT found that the Claimant had not affirmed the contract simply by engaging in the grievance process. The EAT concluded that even where the employee believes that the contract has come to an end, any clauses in place for the purposes of resolving disputes (including any disputes relied upon for constructive dismissal) would remain in place.
The key point for employers to take from this case is that employees can resign and claim constructive dismissal notwithstanding attempts on their part to resolve their issues through a grievance procedure.
If you have any queries in relation to grievances or any other HR queries, please contact our employment team on 01228 552600 or 01524 548494.
This alert does not provide a full statement of the law and readers are advised to take legal advice before taking any action based on the information contained herein.