433: Does engaging in a grievance process affect a constructive dismissal claim?

An employee may bring a constructive unfair dismissal claim where they have resigned in response to a fundamental breach of contract by their employer. However, if the employee waives the breach, for example, by delaying their resignation too long, they will be taken to have affirmed the contract of employment and their constructive dismissal claim will not succeed. In Brooks v Leisure Employment Services Ltd, the Employment Appeal Tribunal (EAT) has considered whether engaging in a grievance procedure amounts to affirming the contract of employment for the purposes of a constructive dismissal claim.

Ms Brooks worked as a resort holiday sales adviser for Leisure Employment Services. She was paid mainly by commission. During the first Covid lockdown, Ms Brooks was asked to work from home. She raised concerns about how she would be paid since holiday resorts were closed. Her employer did not respond but removed her, without explanation, from a WhatsApp group set up for its homeworkers. Ms Brooks raised a grievance about her treatment and sent her employer an email reserving all her rights. She resigned before her grievance was dismissed and brought a constructive unfair dismissal claim, alleging that her employer had breached the implied term of mutual trust and confidence.

The Employment Tribunal held that removing Ms Brooks from the WhatsApp group amounted to a breach of contract. However, Ms Brooks had affirmed this breach by continuing in employment and accepting pay for over two months prior to her resignation. She had therefore lost the right to claim constructive dismissal.

On appeal, the EAT disagreed with the Tribunal’s reasoning. Engaging in a contractual grievance or appeal procedure in an attempt to resolve the issues that gave rise to the breach of contract is unlikely to amount to unequivocal affirmation of the contract. The Employment Tribunal had focused on Ms Brooks receiving pay during the period between the breach of contract and her resignation. It had failed to take into account that she had reserved all of her rights, and that her grievance was unresolved at the time of her resignation. Her claim was therefore sent back to the same Employment Tribunal to reconsider its decision on affirmation.

This case confirms that seeking to resolve a dispute by invoking a grievance or appeal procedure is unlikely in itself to amount to affirming the contract of employment, meaning that the employee may still be able to claim constructive unfair dismissal. However, this will depend on the precise facts and circumstances. The longer an employee remains in employment after the breach, or after a grievance is determined, the more likely it is that a Tribunal will find that the contract has been affirmed.