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No claim when employer upholds grievance

Posted on 2nd June 2009
Case law

Where an employee's grievance is upheld by his or her employer this can remedy a breach of the implied term of trust and confidence which the employee could have relied on to justify resignation.

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as the grievance was upheld before the employee resigned this remedied any breach

Bournemouth University Higher Education Corporation v Buckland EAT 2009

Background

An employee raised a grievance about actions taken which could have amounted to a fundamental breach of contract. The grievance was investigated and the outcome was in the employee's favour. The employee remained unhappy and he resigned. The EAT found that as the grievance was upheld before the employee resigned this remedied any breach of contract that had occurred. The employee could not therefore treat his resignation as a constructive dismissal because by the time he resigned there was no fundamental breach of contract.

In practice

This is an interesting case and one which will no doubt be welcomed by employers. We do not think that this case will help employers in every case where a grievance is upheld. For example, simply exonerating an employee accused of professional misconduct may not be enough without doing more to cure a breach of the implied term of trust and confidence. In this example, the employer may be expected to apologise and deal with any informant acting in bad faith or to communicate the outcome of the grievance to other staff members with an agreed statement.

In the meantime if a grievance is raised by an employee and it is upheld, the prudent employer will not only make this finding clear to the employee as quickly as possible but will also give thought to any additional steps which should be taken to 'repair the damage'. In this way the scope for the employee to still argue a fundamental breach of contract will be reduced.

Note this case has been considered by the Court of Appeal.

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