Grievances and affirmation of the employment contract

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Gordon v J & D Pierce

If an employee resigns promptly in response to a fundamental breach of the employment contract they have a right to bring a claim that they have been constructively dismissed. However if they wait too long or otherwise act in a way that affirms the contract they will lose that right. In the case of Gordon v J & D Pierce (Contracts) Ltd the issue was whether the employee had, in raising a formal grievance about the employer’s conduct, acted in such a way to affirm the contract.

Employee claimed constructive dismissal

The working relationship between Mr Gordon and his manager had got progressively worse. There had been incidents where there had been shouting and when Mr Gordon refused to attend a meeting with him disciplinary proceedings were started. Mr Gordon submitted a grievance alleging that his manager was bullying him. He also appealed the disciplinary decision. Following further meetings relating to changes in the workplace and the grievance process he resigned and claimed constructive dismissal.

The claim was dismissed

He had not established there had been a breach that had led to his resignation. However importantly it was held that by lodging a grievance Mr Gordon had not affirmed his contract. Exercising a right of grievance or appeal should not be regarded as an affirmation of the contract as a whole. A contract may be terminated for some purposes but not for others. Grievance or appeal provisions may be regarded as severable from the remainder of the contract.

Key takeaway point

The practical point is that employees should still where appropriate raise a grievance or appeal. Whilst previously there had been concern that they would lose their right to resign and present a claim of constructive dismissal by raising a grievance or appealing a disciplinary.  Failing to do so always carried the risk that the Tribunal would consider that the claimant had been unreasonable and that any award of compensation might be reduced by as much as one quarter. 

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