Employee who resigned and brought constructive dismissal claim following grievance process did not affirm their employment contract

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In Gordon v J & D Pierce (Contracts) Ltd, the Employment Appeal Tribunal (EAT) found that where an employee resigned and claimed that they had been constructively dismissed by their employer after engaging in their employer’s grievance process, they did not affirm their employment contract.

Mr Gordon was employed as J & D Pierce (Contracts) Ltd’s commercial manager from 2008 until he resigned in 2019.

Mr Gordon’s relationship with his manager had deteriorated. He raised a grievance, alleging that he had been bullied. There was a grievance hearing, following which the firm wrote to Mr Gordon.

Mr Gordon then resigned and claimed constructive unfair dismissal. Constructive dismissal involves an employee resigning in response to an employer’s serious breach (or breaches) of contract. An employee can instead choose to affirm their employment contract and waive the employer’s breach.

Mr Gordon was unsuccessful in the Employment Tribunal. The Judge found that there was not a fundamental breach of contract, but held that even if there had been “the Claimant had affirmed the contract by his actions in continuing to engage in [J & D Pierce (Contracts) Ltd’s] internal procedures”.

Mr Gordon appealed, and the case went to the EAT. Lord Summers held that “it would be unsatisfactory” if an employee was deemed unable to resign in response to an employer’s breach, because “he or she wished to seek a resolution by means of a grievance procedure” first. An employee exercising a contractual right to raise a grievance (or appeal) should not be seen as them affirming the whole of the employment contract.

Mr Gordon’s appeal nonetheless failed on other grounds.