Employee Grievance After Resignation
- Employment Law
- 5th Feb 2021
A recent case has highlighted an area where employers must exercise caution, when dealing with aggrieved employees. In Gordon v J & D Pierce (Contracts) Limited, the Employment Appeal Tribunal (EAT) determined that the fact the Claimant had engaged in a grievance process after resigning did not undermine his argument that he had been constructively […]
By Gareth Matthews
MLP Law
A recent case has highlighted an area where employers must exercise caution, when dealing with aggrieved employees.
In Gordon v J & D Pierce (Contracts) Limited, the Employment Appeal Tribunal (EAT) determined that the fact the Claimant had engaged in a grievance process after resigning did not undermine his argument that he had been constructively dismissed.
Facts
The Claimant’s working relationship with his manager had deteriorated, so he resigned but then participated in the employer’s grievance process. The Claimant then brought a claim of constructive dismissal, alleging that his employer had fundamentally breached his contract of employment due to the manager’s conduct. His employer argued that if the Claimant was prepared to engage in an internal grievance process, he had tacitly accepted or waived the alleged breach, which meant that he could not succeed with a claim of constructive dismissal.
Law
Essentially, if an employer’s conduct amounts to a repudiation of the employment contract, the employee can choose whether to resign or waive the breach. An employee who waives the breach of contract cannot succeed with a constructive dismissal claim. The EAT, however, held that lodging a grievance will not, by itself, be enough for an employer to argue the employee has waived the breach and lost the right to resign and claim constructive dismissal.
The EAT stated that relying on one contractual right, such as a disciplinary appeal or a grievance, does not mean that all other contractual rights fall away, including the right to resign in response to a breach.
Practical Steps for Employers
The Claimant was unsuccessful in his claim for other reasons but the case provides a reminder to employers that an employee’s resignation is not always the end of the story. Ultimately, although the circumstances of every case have to be considered individually, it highlights that employers should follow their own grievance procedures carefully, even where the individual raising the grievance has resigned.
Similarly, as participation in the grievance process by an employee who has resigned does not preclude him or her from then raising a claim of constructive dismissal, there is added impetus for employers to ensure that such a process is well documented, accurate meeting minutes are taken (which should then be agreed with the employee) and a reasonable approach to finding a resolution to the employee’s concerns can be demonstrated. This can improve the employer’s position during any future litigation.
If you have any questions or queries in relation to this blog, please do get in touch – by telephone on 0161 926 9969 or by email to employment@mlplaw.co.uk
About the expert
Gareth Matthews
Partner - Employment Law expert
Gareth is a Partner in mlplaw’s Employment team and for over 10 years has specialised in employment law, primarily advising businesses and senior individuals. Gareth has significant litigation experience, including experience as an advocate in the Employment Tribunal. Gareth also has considerable experience in advising on the employment issues in corporate mergers and acquisition, including the complexities which arise in TUPE transfers. Gareth’s sector experience is wide ranging, encompassing advice to clients in the hospitality, retail, construction, healthcare, recruitment and manufacturing industries. Gareth provides training to clients and organisations on a variety of key employment topics, such as absence management, disciplinary and grievance processes and employment law updates. Gareth also acts as a guest lecturer in employment law at Liverpool Hope University. Gareth has been described by Legal 500 as someone who is ‘very reassuring and does a great job’ and was named Legal Personality of the Year by Downtown in Business. Gareth has also been quoted as an employment law expert in the Manchester Evening News and The Times and is known for his pragmatic and commercial advice, as well as his ability to quickly understand his clients’ business objectives and tailor his advice accordingly. Prior to joining mlplaw, Gareth spent a number of years working in the employment teams at two international law firms in Manchester. Away from work Gareth is a passionate cricket and football fan and enjoys discovering new music. Gareth is also a keen traveller but has had to put his plans to become fluent in a foreign language on hold in favour of spending time with family, particularly his two young sons of whom he is incredibly proud.
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