NO ‘HOLIDAY’ FOR BUTLINS
No ‘holiday’ for Butlins – engaging in a grievance or appeal procedure ‘not likely’ to affirm the employment contract in a constructive dismissal case
Here, Joanne Alvey considers the case of Brooks v Leisure Employment Services Ltd [2023] EAT 137.
Ms Brooks had worked for Leisure Employment Services Ltd who operate Butlins, since 1990. She was a Resort Holiday Sales Advisor within its call centre operations. Most of her usual monthly pay was comprised of commission from the sale of holidays.
Background to the case
The case relates to facts occurring at the outset of the coronavirus pandemic in March 2020. On 18 March 2020, Butlins closed its resorts and informed Ms Brooks that she should remain off work on full pay. Shortly after this, Butlins wished to form a team of 20 employees who could work from home dealing with customer issues. Miss Brooks was considered to be an excellent candidate for this team and it was felt she was suitably set up to work from home. Accordingly, she was added to a WhatsApp group, presumably with other employees who Butlins hoped would form the new customer issues team.
Understandably, Ms Brooks was keen to know what she would be paid as a member of the customer issues team, given that her salary had previously been made up largely of commission on sales. She emailed Butlins to ask the question, however her email was not responded to nor was a subsequent chaser email. Instead, she was removed from the WhatsApp group and no explanation was given for this at the time. She described feeling humiliated and demoralised by this What’s App ousting in front of her colleagues.
Ms Brooks lodged a grievance on the 15th of April 2020, which alleged a breach of the implied term of mutual trust and confidence and disability discrimination (she had asthma; that claim did not succeed). There was some deliberation about how the grievance meeting could take place given the position regarding coronavirus at that time, but it was suggested that the grievance could be dealt with on the papers. Ms Brooks resigned by email on the 25th of June 2020 at which point the grievance process had not been concluded. Resignation was with immediate effect and she asserted a breach of the relationship of trust and confidence. Prior to this she had emailed on the 5th of May 2020, within which she had stated that she reserved all of her rights. The grievance was later dismissed on the 10th of August 2020.
Employment Tribunal proceedings
Employment tribunal proceedings were brought which alleged that when Ms Brooks received an interim response to her grievance on 11 May 2020, she was entitled to consider that Butlins’ earlier conduct of removing her from the WhatsApp group on the 24 of March 2020 was a breach of the implied term of mutual trust and confidence. She therefore claimed that she had been constructively dismissed from 24 March 2020. This was despite her ‘resignation’ on email on 25 June 2020 and evidently her receiving pay until 25 June 2020.
At first instance, the employment tribunal found that Butlins had breached the implied term of mutual trust and confidence, as it was a fundamental breach to remove her from the WhatsApp group in the way it did, without explanation or consultation, and furthermore that the consequence of this action was that she was denied the opportunity to keep on working and receiving a salary. However, the tribunal ruled that the Ms Brooks had affirmed her contract before she resigned given that she had continued to be paid until 25 June 2020. In doing so she had affirmed the breach.
Employment Appeal Tribunal decision
Miss Brooks, appealed to the EAT on the point that she affirmed her contract before resigning.
The EAT considered the case law in respect of the extent to which delay in resigning may establish affirmation and whether using contractual grievance or appeal procedures after an asserted breach results in affirmation. It reached the conclusion that the case law established that provided the employee makes clear their objection to what is being done by the employer, they are not to be taken to have a affirmed a contract by continuing to work and receive pay for a limited period of time. The EAT found that carrying out a contractual grievance appeal procedure was not likely to be an unequivocal affirmation of the contract. The case was therefore remitted back to the employment tribunal in order for it to consider affirmation again, taking into account the fact that Ms Brooks had raised a grievance that hadn’t been completed at the time of her resignation and her having reserved her rights in an email on the 5th of May 2020.
Conclusion
This is a case worthy of remembering in situations where it seems an employee may have affirmed an alleged breach of contract by not resigning at the time and continuing to receive pay, but where there are ongoing internal processes and/or the employee has ‘reserved their rights’. It is always better to obtain advice at an early stage in such cases; please get in touch with us for any help you require.