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What if the employer fails to deal with the grievance?
An employer who ignores a grievance or fails to deal with a grievance within a reasonable time may be in fundamental breach of the employment contract (WA Goold (Pearmak) Ltd v McConnell [1995] IRLR 516). Sometimes employees faced with this situation want to resign. Employees in this position should take legal advice, but as a general rule, resigning mid-way through a grievance process because of unhappiness about the way the grievance is being handled is not a sensible step if the employee hopes to bring a tribunal claim based on the employer’s failure to deal with the grievance. In particular, there is a risk that the employer’s actions will not be regarded as a fundamental breach of the employment contract.
A recent case provides a good illustration of the risks involved:
Mr Assamoi, a pub kitchen manager, was texted by his manager and summoned to attend a hastily convened kitchen team meeting about hours and rotas, to take place at 9:00am the following day, which was a day when Mr Assamoi had pre-booked holiday approved by his manager. The text said all “must attend without failure. If you do not attend, it may end with disciplinary proceedings against you”. When it became clear at an investigatory meeting, that his non-attendance was because he was on holiday, he was told formally that no action would be taken. He lodged a grievance about the manager’s behaviour and failure to apologise and resigned. The EAT upheld a tribunal’s conclusion that the manager’s acts were “likely to damage [the] relationship of trust and confidence” but that the response of other managers at the investigatory meeting by “believing and accepting the Claimant’s account”, confirming that no formal action would be taken and offering him the possibility of transfer to another pub prevented a fundamental breach of the employment contract from taking place. As a result, Mr Assamoi’s claim for constructive unfair dismissal failed.
Assamoi v Spirit Pub Company (Services) Limited [2011] UKEAT/0050/20/3007
Every case is different and the highly “fact-sensitive” nature of constructive dismissal claims makes resignation an extremely risky strategy where the employee hopes to bring a claim in the employment tribunal.