Constructive dismissal claim fails after employee refused to return to work
A tribunal dismissed a constructive unfair dismissal claim from a quality assurance employee who resigned after refusing to return to work, finding no repudiatory breach by Vision Care Services Ltd.
1 min read · Last updated 18 May 2026
Case details
- #constructive-dismissal
- #breach-of-trust-and-confidence
- #grievance-procedure
- #unauthorised-absence
- #job-role-dispute
- #wage-deduction
Key facts
- The claimant was employed from 12 December 2016 until his resignation on 6 January 2022.
- The claimant was absent from work from 14 October 2020 to 5 November 2020 and then isolated due to COVID-19.
- The claimant raised a grievance on 7 April 2021 about being made to stay at home without pay.
- The respondent instructed Peninsula to handle the grievance and provided outcomes.
- The claimant was asked to return to work on 31 August 2021 but refused, citing unresolved concerns about his job role and hours.
- The claimant resigned on 6 January 2022, citing hostility and negligence over a year.
Timeline
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Employment started
The claimant began employment with the respondent.
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Absence from work
The claimant was absent from work until 5 November 2020.
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Meeting about sexual harassment allegation
The claimant attended a meeting regarding an allegation of sexual harassment made by a female colleague.
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Travel to Pakistan
The claimant travelled to Pakistan for his sister's wedding, returning on 22 March 2021.
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Grievance raised
The claimant raised a grievance about being made to stay at home without pay.
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Grievance meeting
The claimant attended a grievance meeting with a consultant from Peninsula.
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Grievance outcome
The grievance outcome recommended payment for the period 20 November to 15 December 2020 and further disciplinary investigation.
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Return to work instruction
The respondent wrote to the claimant instructing him to return to work on 31 August 2021.
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Claimant refused to return
The claimant emailed stating he would not return until his concerns about job role and hours were resolved.
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Claim presented to Tribunal
The claimant presented a claim for breach of contract and whistleblowing.
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Resignation
The claimant resigned, citing hostility and negligence.
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Judgment
The Tribunal dismissed the claims for unfair dismissal and breach of contract.
The legal issue
The tribunal had to decide whether the employer's conduct amounted to a repudiatory breach of contract that justified the employee's resignation, and whether there was a failure to pay wages.
The outcome
The tribunal dismissed both claims.
- The claimant resigned after refusing to return to work, citing unresolved concerns about his job role and hours. The tribunal found that the employer had addressed his grievance through an external consultant and had not acted in a way that destroyed trust and confidence.
- The claim for unpaid wages was also dismissed as the employer had paid for the period in question following the grievance outcome.
- No compensation was awarded as the claims failed.
Lessons & takeaways
- Employees who refuse to return to work while a grievance is being processed risk their constructive dismissal claim failing if the employer has acted reasonably.
- Raising a grievance does not automatically give an employee the right to stay away from work without permission.
- Employers who follow a proper grievance process, even if delayed, can defend against claims of breach of trust and confidence.
- Documenting all communications and decisions is crucial to show a fair process was followed.
When refusing to return to work backfires
This case shows the risks employees take when they refuse to return to work while a grievance is ongoing. The former employee, a quality assurance worker with five years' service, raised a grievance in April 2021 about being kept at home without pay. The employer, Vision Care Services Ltd, appointed an external HR consultant to handle the process, which resulted in a recommendation to pay the employee for the disputed period and to continue a disciplinary investigation.
Despite this, the employee refused to return to work in August 2021, insisting that his concerns about his job role and hours must be resolved first. He resigned in January 2022, claiming constructive dismissal. The tribunal found that the employer had not breached the implied term of trust and confidence. The grievance had been addressed, and the employee's refusal to return was not a reasonable response.
What the employer did right
The employer acted promptly by involving an external consultant to handle the grievance impartially. They communicated the outcome and instructed the employee to return to work. When he refused, they did not dismiss him but allowed the situation to continue. The tribunal noted that the employer's conduct did not amount to a repudiatory breach.
Key takeaway for similar claims
Constructive dismissal requires a fundamental breach of contract by the employer. An employee who unilaterally decides not to work while a grievance is pending, without a clear breach by the employer, will struggle to succeed. The tribunal emphasised that the employee had not been dismissed; he chose to resign. For employees, it is essential to follow the employer's reasonable instructions and use formal grievance procedures without taking matters into their own hands.
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