Upholding an employee grievance can block subsequent constructive dismissal claim by employee
Employers who find in an employee's favour in grievance proceedings before the employer has breached the implied term of trust and confidence, can prevent the employee subsequently claiming the employer has breached it.
An employer lodged a grievance against his manager. After investigation senior management vindicated the employee and upheld his grievance. The employee later resigned and claimed constructive unfair dismissal on grounds that his line manager's behaviour, which had given rise to the grievance, had breached the implied term that an employer should show mutual trust and confidence in its employees.
The Employment Appeal Tribunal (EAT) held that the employee's vindication in the grievance procedure had taken place before there had been any breach of the implied term. This meant the employee could not subsequently claim constructive dismissal on grounds that the implied term had been breached.
However, the EAT stressed that if there had already been a breach, the situation would not have been retrieved by the later vindication of the employee's grievance. It drew a distinction between preventing matters escalating into a breach of the implied term of mutual trust and confidence and trying to cure a breach which has already taken place.
Employers faced with an unhappy employee should consider whether there has yet been a breach of the implied term of trust and confidence and, if not, whether vindicating the employee in, for instance, grievance proceedings can retrieve the situation.
Case ref: Assamoi v Spirit Pub Company (Services) Ltd (Unfair Dismissal : Constructive dismissal)  UKEAT 0050_20_3007
Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.
Need to make tough HR Decisions? We can help. click here to see our HR Retainer Service
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.