Is grievance procedure proof of contract?

In Gordon v J & D Pierce (Contracts) Limited, a man’s claim for unfair dismissal was refused because an employment judge said that, by having used his employer’s grievance procedure, he was still technically

Mr Gordon resigned from structural steelwork contractors J & D Pierce (Contracts) Limited, and brought a claim of
constructive dismissal after his working relationship with his manager deteriorated. An employment judge held that he could not succeed with his constructive dismissal claim because he had affirmed his employment contract by engaging in his employer’s grievance procedure. Mr Gordon appealed the decision to the Employment Appeal
Tribunal (EAT).

The EAT, though rejecting Mr Gordon’s appeal for other reasons, disagreed with the employment judge on the point about affirmation of contract, and went on to conduct an examination of the relevant case law. It concluded that “exercising a right of appeal against what is said to be a seriously unfair disciplinary decision is not likely to be treated as unequivocal affirmation of the contract”, and held that an employee did not affirm their employment contract by engaging in their employer’s grievance procedure. An employee’s reliance on one
contractual right does not mean he has accepted that all other contractual rights are intact.

The EAT further considered that exercising a right to raise a grievance and exercising a right of appeal both involve using contractual rights, and its view was that neither should be seen as affirmation of an
employment contract as a whole. A contract could be terminated for some purposes and not for others, and it would be unsatisfactory if an employee was unable to accept a repudiation because they wanted resolution by means of a grievance procedure.

Employers should take note that an employee who engages in a grievance process is not affirming a breach of their employment contract. Grievance procedures are a route to resolution and employers should ensure that they comply with their grievance procedure and the Acas Code of Practice on Disciplinary and Grievance Procedures as failure to do so could amount to breach of contract in itself. All employers, regardless of size, must have
a written grievance procedure which complies with certain minimum standards.

Please get in touch with our employment solicitors, if you need assistance in putting together a grievance policy for your company or advice on how to deal with a grievance.