Constructive dismissal and the right to bring a grievance
The Employment Appeal Tribunal (EAT) has held in Gordon v J & D Pierce (Contracts) Limited that the action of raising a grievance did not mean that the claimant had affirmed his contract.
The claimant's working relationship with his manager deteriorated and he ended up resigning and brought a claim of constructive dismissal. The tribunal rejected his claim, holding that there had been faults on both sides. It also held that by engaging the grievance procedure the claimant had affirmed the contract.
The claimant appealed. Although the EAT rejected the appeal for other reasons, it held that the fact that the claimant had engaged in a grievance process did not mean that the contract had been affirmed. Exercise of a right of grievance or appeal should not be regarded as affirmation of an employment contract as a whole. The EAT concluded that it would be unsatisfactory if an employee was unable to accept a repudiation because they wished to seek a resolution by means of a grievance procedure.
Take note: The decision in Gordon makes it clear that a resignation on grounds of breach of contract leading to a constructive dismissal claim will not preclude the resigning employee from raising a grievance. The action of raising a grievance will not operate to affirm the employee's contract.