Constructive Dismissal: Affirmation
Daniel Barnett
I represent businesses in high-stakes employment litigation and invest in HR consultancies. I am a presenter on LBC Radio, qualified as a barrister, and train lawyers & HR Professionals in employment law.
Did the Claimant affirm a contract by raising a grievance?
No, held the EAT in Gordon v J & D Pierce (Contracts) Limited.
The Claimant's working relationship with his manager (Mr Pierce) deteriorated. He resigned and brought a claim of constructive dismissal. In rejecting his claim, the tribunal held that there were 'faults on both sides'. It also held that by engaging in the grievance procedure he had affirmed the contract. The Claimant appealed.
The EAT rejected the 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.
Following Kaur v Leeds Teaching Hospitals NHS Trust, 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.
Thanks to James English of Ward Hadaway for preparing this case summary.
