A recent EAT decision highlighted the potential risks for employers who conduct inefficient employee complaint and/or grievance processes.
A longstanding employee (Ms Brooks) of a holiday sales company raised concerns regarding her potential loss of earnings resulting from a change of role during the COVID-19 pandemic.
Ms Brooks usually worked in the call centre selling resort holidays and received commission on her sales. Her contractual salary was a basic wage that was topped up each month by her ability to earn commission. During the pandemic, Ms Brooks was asked to work from home dealing with customer complaints. A WhatsApp group for the employees who would be working from home on this task was created.
Ms Brooks emailed her employer asking what her pay would be whilst on the homeworking team (given there was no opportunity in this role to earn commission). On the same day, she was removed from the WhatsApp group without any warning or explanation and her question went unanswered.
Ms Brooks submitted a grievance in response to this treatment, including writing in correspondence that she “reserved all her rights”. A couple of months later, with the grievance procedure still incomplete, she resigned with immediate effect, bringing a claim for constructive unfair dismissal.
Employment Tribunal decision:
The basis of her claim was that the she believed her employer’s conduct (i.e. removing her from the WhatsApp group without consultation/explanation as to her pay concerns) amounted to a fundamental breach of her employment contract, specifically the implied term of trust and confidence and that she had been left with no option but to resign.
Despite finding that the employer had fundamentally breached the implied term, the tribunal dismissed the claim saying that Ms Brooks had affirmed her contract by delaying her resignation and continuing to receive a salary in the intervening period.
Upon appeal the EAT held that the tribunal had erred in its consideration of affirmation. Specifically, it failed to consider that –
- the grievance raised by Ms Brooks was incomplete at the date of her resignation; and
- upon submitting the grievance, she purported to reserve all her rights in the intervening period (i.e. before her resignation).
The EAT held that the tribunal had overlooked the established authorities which made clear that the exercise of a contractual grievance procedure is not generally considered to be an unequivocal affirmation of the employment contract and that instead, it represents an attempt to provide the employer with an opportunity to resolve issues raised by employees whilst the employees continue ‘to work and draw pay for a limited period of time’.
The matter has been remitted for the same tribunal to consider the effect of the above factors.
This case highlights the need for employers to take steps to deal with any disciplinary or grievance issues in a timely manner. Where there are delays, it’s important to keep the employee up to date on the process and expected timescales.
In this case, the employee raised her concern informally and this escalated to a grievance (and ultimately a long and ongoing tribunal process), in part because of a failure to respond / take the concern seriously. Where concerns or potential issues are identified, it’s usually best practice to take a proactive approach to deal with these at an early stage and may save time / money further down the line!
Posted on January 9, 2024