In the Employment Tribunal (‘ET’) case of Gordon v J & D Pierce (Contracts) Ltd it was held that an employee engaging in a grievance process did not mean that they had affirmed their employment contract for the purposes of a constructive dismissal claim. Instead, it is an option that promotes resolution where there is a break down in the employment relationship.
In this case there had been substantial break down in the employment relationship between the employee and his manager. This prolonged deterioration in the relationship, caused the employee to resign and claim constructive dismissal on the basis there had been a breach of trust and confidence.
The ET originally held that raising a grievance did indeed affirm the contract and dismissed the constructive dismissal claim. The Claimant appealed this decision.
The EAT upheld the rejection of the constructive dismissal case for various reasons as there was fault by both parties in the employment relationship. However, in relation to the affirmation point, it overturned the ET’s decision, stating that to seek resolution and raise a grievance did not amount to affirming the contract and did not negate any potential claim for constructive dismissal. The reliance on a contractual right to raise a grievance does not mean that an employee is unable to accept a repudiatory breach nor unable rely on other elements of their employment contract.
Consideration needs to be had when dealing with potential breaches of contract that could give rise to a constructive dismissal case. Any and all breaches can be looked at by the ET and raising a grievance will not be held to be affirming the contract. This will likely continue to be an unsuccessful defence to a constructive dismissal claim.