We all know that in any organisation, trust is the invisible glue holding working relationships together. When that trust starts to wear thin, whether from poor leadership or festering conflict, even the most meticulously drafted internal processes can prove worthless. This is the stark reality of constructive dismissal; it’s the point where an employee’s faith in their employer is so fundamentally broken that walking away feels like the only viable option.
But here’s the question that often comes up in our world: does an employee really have to jump through every single procedural hoop before they can make that claim? For a long time, most of us would have said yes. Now, a recent legal precedent is starting to shift the ground beneath our feet.
When Following the Process Leads to Resignation
Let’s imagine a dedicated schoolteacher. She’s not just there for the payslip; she’s invested in shaping young lives. But over a period, she finds herself on the receiving end of hostile behaviour from her headteacher. Being professional, she does everything by the book. She raises a formal grievance, sits through the meetings, and awaits an outcome. By the time she reaches the second stage, it’s painfully obvious the process isn’t a shield, but a source of exhaustion. So, she resigns. Not in a fit of pique, but as an act of self-preservation.
This isn’t just a story. It’s the real-life case of Nelson v. Renfrewshire Council, and it’s forcing a rethink of how UK employment law looks at constructive dismissal.
The Nelson Case: A Shift in the Legal Compass
Ms Nelson officially raised her concerns about aggressive conduct, and she even had witness testimony to back her up. Her grievance was dismissed twice through the internal process. The next logical step was an appeal to the council itself. But by that point, the trust was gone. She resigned and filed for constructive dismissal, arguing her employer had breached that unwritten, yet absolutely crucial, term of mutual trust and confidence.
At first, the employment tribunal sided with the employer, pointing to the fact she hadn’t completed every step of the grievance process. However, the Employment Appeal Tribunal (EAT) saw things differently, and in doing so, it completely reframed the conversation.
The Crucial Legal Takeaways:
- You don’t have to see a broken process to its bitter end.
The EAT made it clear that employees are not obligated to exhaust every last stage of an internal procedure. What truly matters isn’t ticking every box, but whether the employer’s actions were serious enough to destroy the relationship of trust. - The likelihood of damage is the real test.
The initial tribunal got it wrong by trying to determine if trust had *already* been completely shattered. The correct legal question, the EAT clarified, is whether the employer’s conduct was likely to destroy or seriously damage that trust. It’s a test of probability, not a demand for absolute proof.
This is a subtle but incredibly powerful distinction. It sends a clear message that the quality of your people’s treatment will always trump the quantity of your paperwork.
For Employers: A Moment to Look in the Mirror
It’s tempting for organisations to see grievance procedures as a form of legal insulation; layers of process designed to protect the business from claims. This ruling is a potent reminder that no policy, however well written, can ever be a substitute for integrity. We have to ask ourselves a hard question: are our processes genuinely resolving issues, or are we just processing them?
Three Ways to Build a Culture of Trust:
- Embed Fairness from Day One
Don’t wait for a formal complaint to show that you’re impartial. You need to ensure every investigation is handled with genuine care, transparency and dignity. Your employees can immediately tell the difference between a box-ticking exercise and a process rooted in real concern. - Respond with Pace and Sincerity
You should treat every grievance like an emotional emergency. Delays only add friction and erode confidence. Tackling concerns promptly demonstrates respect and builds trust, while a slow, drawn-out response simply fuels disillusionment. - Understand the Reputational Risk
A constructive dismissal claim is never just a legal headache. It’s a story about your culture, and it’s a story that gets told in tribunals, online and in boardrooms. Every unresolved grievance represents a crack in the foundation of your employer brand.
What About the Money? The Acas Angle
So why wouldn’t an employee just ignore the grievance process completely? A key reason is financial. Under the Acas Code of Practice, side-stepping internal procedures without good reason can lead to a tribunal reducing any compensation award by up to 25%.
It creates a difficult balancing act for the employee. Some may tolerate a painful process to protect the value of a potential claim, while others will prioritise their own wellbeing and walk away sooner. But as employers, we should never rely on this potential penalty as a deterrent. Real prevention is found in the experience you provide for your people, not in the penalties you might threaten.
Beyond Policy: Building Workplaces People Want to Be In
The modern workforce isn’t just after a regular payslip. People are looking for purpose, for fairness, and, above all, for respect. A grievance procedure, no matter how flawlessly designed, is simply no replacement for a culture where people feel genuinely seen and valued.
Instead of obsessing over whether your processes are legally watertight, perhaps the better question is: are they trustworthy? That’s where the real safeguard lies. The goal should be to create a workplace where grievances are rare, not because people are afraid to raise them, but because they have no reason to.
The lesson from the Nelson case couldn’t be clearer: trust isn’t a procedural outcome, it’s a commitment from leadership. Build it, protect it, and make it the standard against which every single one of your policies is measured.
