Constructive dismissal - employee retained right to claim after invoking contractual grievance procedure
The Employment Appeal Tribunal (EAT) has found that an employee who resigned after an unsuccessful grievance procedure, did not lose her right to claim constructive dismissal in respect of her earlier treatment.
Background
In the case of Brooks v Leisure Employment Services Ltd, Ms Brooks raised concerns with her employer about how she would be paid during the COVID-19 pandemic. Her employer did not respond, and instead took action by removing Ms Brooks from a work WhatsApp group as well as a team of homeworkers assembled during the pandemic - without explanation.
Ms Brooks raised a grievance in respect of her treatment, which was dismissed following the grievance procedure. Ms Brooks resigned with immediate effect, asserting breach of trust and confidence. She brought claims for constructive dismissal and disability discrimination. The Tribunal found that the employer had breached the implied term of mutual trust and confidence in how it had treated Ms Brooks. It found that Ms Brooks had resigned because she had been removed from the WhatsApp group and the homeworking team. However, it went on to find that by invoking the contractual grievance procedure and continuing to accept payment for a further three months, Ms Brooks had affirmed her contract, ie she had waited too long after the breach of contract before resigning. The Tribunal found that Ms Brooks had therefore lost the right to claim constructive dismissal. Ms Brooks appealed to the EAT.
EAT decision
The EAT allowed the appeal and remitted the claim to the same Tribunal for rehearing on the affirmation issue. The EAT disagreed with the Tribunal in respect of whether Ms Brooks had waited too long after the breach before she resigned. It found that exercising a contractual grievance or appeal procedure normally represents an attempt to give an employer an opportunity to resolve an issue that gave rise to a breach of contract. It is unlikely to be treated as an unequivocal affirmation of the contract.
The EAT also commented on the important distinction between waiving a breach (affirming it through inaction) and affirmation (waiting too long before taking action). The EAT remarked that the two terms are often used interchangeably, but in fact mean different things. Both waiver and affirmation will negate the statutory right to bring a constructive dismissal claim. However, if a claimant only affirms a contract, they will retain the right to sue for damages for breach of contract.
Comment
This decision provides some useful clarification of the previous line of case law in this area. It also confirms that under usual circumstances, the fact that an employee has invoked a contractual grievance procedure is unlikely (of itself) to result in the loss of the right to claim constructive dismissal.