In a previous article, I addressed the question “Can an employer cure a constructive dismissal?” (https://demstonechambers.co.uk/can-an-employer-cure-a-constructive-dismissal/). The case of Gordon v J & D Pierce (Contracts) Ltd UKEATS/0010/20/SS concerns the slightly different question of whether a constructively dismissed “employee” who engages in an “employer’s” grievance process can be assumed to have affirmed the contract of employment. In short, the Employment Appeal Tribunal’s answer was “no”.
At first instance, the Employment Tribunal had held that the Claimant was not entitled to treat his employer’s conduct as a repudiatory breach of the contract of employment and that he had not therefore been constructively dismissed. Applying the test for a breach of an implied term developed in Malik v Bank of Credit and Commerce International SA [1997] UKHL 23, the Employment Tribunal had found that the level of trust had not been “destroyed or seriously damaged”. The Employment Tribunal had also held that the claim would, in any event, have failed because the Claimant had affirmed the contract by engaging in his employer’s grievance procedure. The Claimant appealed.
The Employment Appeal Tribunal dismissed the Claimant’s appeal, holding that the Employment Tribunal had been entitled to find that the employer had not breached the implied term of trust and confidence and that the Claimant had not therefore been constructively dismissed. The Employment Appeal Tribunal held, however, that the Employment Tribunal had erred in law by concluding that the Claimant had affirmed the contract by engaging in a grievance procedure.
Citing the Court of Appeal’s decision in Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978, where Underhill LJ commented that “exercising a right of appeal against what is said to be a seriously unfair disciplinary decision is not likely to be treated as an unequivocal affirmation of the contract”, the Employment Appeal Tribunal held that reliance on one contractual right did not necessarily signify an acceptance that all other contractual rights were intact; there was no irregularity in considering a contract being terminated for some purposes but not for others.
The point that employment lawyers should take from this case is that an employee’s decision to engage in a grievance procedure does not reverse constructive dismissal.
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