Gordon v J & D Pierce (Contracts) Ltd UKEATS/0010/20/SS

Appeal against the ET’s decision that the Claimant was not constructively dismissed. Appeal dismissed.

The Claimant alleged that he had been constructively dismissed by the Respondent. In considering whether the Respondent had breached the obligation of trust and confidence, the ET applied the test in Malik v Bank of Credit and Commerce International SA [1997] UKHL 23 and concluded that it had not; as a result, it held that the Claimant was not entitled to treat the Respondent's conduct as a repudiation of the contract of employment. The ET also held that, by engaging in the Respondent's grievance procedure, the Claimant had affirmed the contract of employment, thereby forfeiting his right to rely on the breach of the implied term of trust and confidence. The Claimant appealed, arguing that the ET had erred in law by applying only half of the Malik test, by referring repeatedly to conduct likely to "destroy" the relationship while omitting reference to "or seriously damage".

The EAT held that the ET had clearly conducted a balancing exercise regarding the full Malik test, and had simply referred to "destroy" rather than "destroy or seriously damage" by way of shorthand; accordingly, the contract of employment remained entire, no right of resignation arose and there was no constructive unfair dismissal. On the affirmation point, the EAT held that the ET had erred in law by concluding that, where the Claimant intimated that he considered the contract to have come to an end, he was to be taken to affirm that the contract had come to an end for all purposes; however, since there had been no constructive dismissal, the appeal was dismissed.


Published: 08/02/2021 11:57

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