Constructive Unfair Dismissal – Affirmation

Where an employee has been treated so badly at work that they feel they have no choice but to resign, they may look to bring a claim of constructive unfair dismissal. In order to be successful in such a claim, the Claimant must be able to show that:

• There was a breach of contract by the employer which was fundamental and went to the root of the contract so as to justify the resignation;
• The resignation was in response to that breach of contract and not something else; and
• They did not delay too long in resigning in response to the breach/did not affirm the contract by continuing in post for an unjustifiable length of time.

The case of Gordon v J & D Pierce (Contracts) Limited addressed the third limb of this test.

Gordon v J & D Pierce (Contracts) Limited

Case summary

The Claimant had been employed by the Respondent for 11 years as a Commercial Manager. His working relationship with his manager had deteriorated and he alleged that aggressive and intimidating emails had been sent to him by the manager. This was followed by a heated exchange in the office following which the Claimant was disciplined and someone else was appointed to work in a management tier above him without consultation with him. The Claimant resigned and brought a claim of constructive unfair dismissal.

The Employment Tribunal rejected the Claimant’s claim, finding that there were ‘faults on both sides’. It also, importantly, held that by engaging in the grievance procedure before he resigned he had affirmed the contract and accepted the Respondent’s alleged conduct. The Claimant appealed.

The Employment Appeal Tribunal (EAT) rejected the Claimant’s appeal for other reasons, but held that the fact that the Claimant had engaged in a grievance process did not mean that the contract had been affirmed. Relying on one contractual right, a disciplinary appeal or a grievance, does not mean that all other contractual rights fall away.

The EAT concluded that just because an employee believes the contract has come to an end, it does not come to an end for all purposes and clauses to resolve differences or disputes in particular would remain in place. Indeed, employees are encouraged to use the grievance procedure to try to resolve issues and Employment Tribunals do have the discretion to reduce compensation awarded to successful Claimants by up to 25% if they have unreasonably failed to raise a grievance with their employer. It is right then that exercising a right to raise a grievance should not be a deemed affirmation and acceptance of the whole of the contract.