Ever since a case called Cyprus Airways v Lambrou in 2007, it has been assumed that the grievances about which the employee complained must be the same as the ones those on which he bases a claim for constructive dismissal. The employee must have complied with the requirements of the statutory grievance procedure in respect of the matters on which he relies as entitling him to terminate the contract before the Tribunal has jurisdiction to hear the claim under S32(2) of the Employment Act 2002. The point at issue was whether one can sever one or more items from a list of grievances.
The point has come up again in Parsons v Burworth Estates where the Tribunal had found that the complaints relied on by the Claimant had not been the subject of a prior grievance. The Cyprus Airways case had been considered by the Tribunal.
The Employment Appeal Tribunal traced the sequence of events and the relationships between the subjects of the employee’s grievances and the complaints actually relied on as founding the claim for constructive dismissal.The EAT found in the employee’s favour, saying:
In our view, Cyprus Airways does not enunciate any general principle about “severance”. In a case where the claimant relies for the purpose of his constructive dismissal claim on a series of quite discrete breaches, but has failed to lodge a grievance in respect of some of them, we can see no reason in principle why he should not pursue his claim insofar as it is based on the remainder.
The case was remitted to the Employment Tribunal for a substantive hearing on the basis of the whole of the Claimant’s case as pleaded.
If you need help or advice with a potential claim relating to your employment or are an employer facing such a claim, we would be pleased to help. Please get in touch with Andrew Penfold or Felix Appelbe on 020 7242 7000.
