Constructive dismissal is a form of unfair dismissal where the employee resigns in response to a fundamental breach of an express or implied term of the contract of employment by the employer. In order to succeed the employee must prove as follows:-
- They were an employee.
- They resigned.
- The resignation was in response to a fundamental breach of an express or implied term of the contract of employment.
- The employee did not delay too long before resigning or affirm the breach of contract.
The EAT has confirmed that engaging in a contractual grievance or appeal procedure is not likely to affirm the employment contract for the purposes of a constructive dismissal claim.
An employment tribunal dismissed the employee’s constructive dismissal claim on the basis that she had affirmed her employment contract by continuing to accept payment without resigning for three months following her employer’s repudiatory breach. She had raised a grievance about the breach, which was not completed at the time she resigned, and had expressly reserved her rights. The employee appealed.
In the EAT’s view, use of a contractual grievance procedure will generally be no more than “continuing to work and draw pay for a limited period of time”, so generally will not amount to affirmation.
The EAT held that the tribunal had failed to take the employee’s ongoing grievance and reservation of her rights into account, and it was vital for it to do so when considering affirmation, so remitted the case to the same tribunal to consider this issue.
Case: Brooks v Leisure Employment Services Ltd  EAT 137 (8 November 2023).