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Tag: Brooks v Leisure Employment Services

Does following a contractual grievance or appeal procedure mean that an employee ‘affirms’ their contract and loses their right to claim constructive unfair dismissal?

No, said the EAT in Brooks v Leisure Employment Services (available here), particularly where the employee has clarified they are working under protest.

Facts: The employee, Ms Brooks, worked as a holiday sales adviser at Butlins. In March 2020 all the Butlins resorts were closed due to the Covid-19 lockdown. The employer listed about 20 people who could work from home to deal with customer issues, including Ms Brooks, and she was put on a WhatsApp group for these purposes.

However, when Ms Brooks sent an email asking what pay she would receive for this role, instead of receiving a reply, she was removed from the group. She was later told that she had been removed because there were more candidates than could be recruited, but this was untrue.

Ms Brooks raised a grievance about her treatment on 15 April 2020 alleging discrimination and breach of the implied term of trust and confidence. On 5 May, she sent an email saying ‘I reserve all my rights’. Ms Brooks resigned on 25 June 2020 and her grievance was dismissed on 10 August 2020. She brought a claim for unfair constructive unfair dismissal.

Tribunal decision:  The Tribunal said removing Ms Brooks from the WhatsApp group was a fundamental breach of contract, but that by continuing in employment (and being paid for a further three months).

EAT decision:  The EAT disagreed. It said that in normal circumstances exercising a contractual grievance or appeal procedure represents an attempt to give an employer an opportunity to resolve the issues that gave rise to a breach of contract. This should not be treated (of itself) as an affirmation of the contract, particularly where the employee has reserved their rights and is working under protest.


This is a reminder to employers that pursuing a grievance is unlikely to be treated (of itself) as an employee’s affirmation of the contract. They can still succeed in a constructive unfair dismissal claim – particularly if they have made it clear they (still) object to the breach and are working under protest.

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