An employer who has committed a fundamental breach of an employee's contract cannot prevent the employee claiming constructive dismissal by upholding the employee's grievance about that breach.

The Court of Appeal has overturned previous authority and ruled that the employer cannot cure a fundamental breach once committed. The employee can therefore choose to resign and claim constructive dismissal even if his complaint about the breach has been upheld in an internal grievance investigation.

Employers will need to bear this ruling in mind when investigating grievances – upholding a complaint will not always (legally) prevent the employee bringing a constructive dismissal claim. Of course an employee who feels that his complaints have been taken seriously and that steps have been taken to address his concerns will still be much less likely to resign.

The Court also ruled that the test for constructive dismissal is whether the employer had, without reasonable and proper cause, conducted itself in a manner calculated or likely to destroy the relationship of trust and confidence. The test is not whether the employer's conduct fell outside the range of reasonable responses in that situation. (Buckland v Bournemouth, CA)