Constructive dismissal and delay – engaging in a grievance procedure
Constructive unfair dismissal claims can arise where an employee with more than two years’ service argues that they are entitled to resign from their employment because of the way they have been treated by their employer.
To succeed in their claim, the employee must be able to show that the employer acted in fundamental breach of contract. The alleged breach could be a breach of the implied term of trust and confidence. The employee will then also need to show that they resigned because of the breach, and that they did not delay before resigning. If the employee delays too long, there is a risk that they have affirmed the contract of employment, losing their ability to claim constructive unfair dismissal.
Ms B raised a grievance with her employer on 15 April 2020, alleging that there had been a breach of the implied term of trust and confidence. Her grievance related to her removal from a WhatsApp working group on 24 March 2020 without explanation after she had raised concerns about her remuneration. In a later email exchange, she wrote ‘I reserve all of my rights’. On 25 June 2020, Ms B resigned by email with immediate effect, before the grievance procedure had been completed. Her grievance was dismissed by the employer on 10 August 2020.
Ms B issued claims in the Employment Tribunal, including unfair constructive dismissal. The Tribunal found that there was a fundamental breach of contract and that was the reason for her resignation. However, it found that Ms B had affirmed her employment contract by continuing to accept payment without resigning for three months following the breach. It therefore dismissed the claim.
Engaging in a grievance process
Ms B appealed to the Employment Appeal Tribunal (EAT). She argued that she had not affirmed her contract of employment before resigning. The EAT agreed that the employer was in breach of the implied term of trust and confidence.
However, it found that the Tribunal had erred when deciding that Ms B had affirmed her contract of employment. The EAT found that the Tribunal had not considered the fact that Ms B had stated she reserved all her rights; and did not take into account the fact that Ms B had raised a grievance that had not been completed when she resigned. The EAT therefore sent the case back to the Tribunal for rehearing on the issue of affirmation.
In this case, the EAT noted that engaging in a contractual grievance or appeal procedure is not likely to unequivocally affirm the employment contract. Using such a process is no more than ‘continuing to work and draw pay for a limited period of time’.
This judgment confirms that an employee can claim constructive dismissal despite having engaged in a grievance procedure, including an appeal. The delay in pursuing the grievance process will generally not mean that the employee has affirmed the contract.
20 December 2023
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