Employment Tribunals: raising a grievance not a bar to constructive dismissal claimFebruary 02, 2021
The Employment Appeal Tribunal recently held in the case of Charles Gordon v J & D Pierce (Contracts) Ltd that an employee had not affirmed (i.e. accepted) a breach of contract and could still claim constructive dismissal even though he did not resign immediately and instead raised a grievance.
Mr Gordon claimed he had been constructively dismissed alleging that his employer had breached an implied term of the employment contract: trust and confidence.
The Claimant’s allegations against his employer focused on the behaviour of his manager, Mr Pierce, which he said had been aggressive and intimidating, and his perceived demotion without consultation.
Prior to his resignation, Mr Gordon initiated the company’s grievance procedure in relation to the alleged bullying.
Whilst the Claimant’s case and appeal failed for other reasons, the Employment Appeal Tribunal held that the fact that Mr Pierce had used his contractual right to raise a grievance did not mean he had accepted any breach. Notwithstanding the fact that his case failed for other reasons, he would have still been entitled to resign and claim constructive dismissal.
The Judge found that just because the employee sought to rely on one contractual right (the grievance procedure) it did not mean all other rights and obligations, e.g. the obligation to continue working for the employer, remained intact.
Pragmatically, the Judge considered that it would be unsatisfactory for a right which aided resolution to be dissolved in these circumstances.
Constructive dismissal cases are complex and both employees and employers should seek legal advice as early as possible to ensure their position is protected.
Ince Metcalfes can support you through the process of bringing or defending a constructive dismissal claim. For more information and advice, please do not hesitate to contact a member of our Employment team.
The information above is not and should not be taken to be legal advice. You should not take action or omit to take action based on this information.