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Constructive unfair dismissals and the date of resignation

Posted on 1st July 2014
Case law

An employee loses the right to claim constructive and unfair dismissal if he or she delays too long before resigning; unreasonable delay allows the employer to argue that its breach of contract has been “affirmed” by the employee. The Employment Appeal Tribunal (EAT) in this case stresses that the timing of a resignation is an important factor but it must not be considered in isolation. Employment tribunals must consider the date of resignation in context.

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In constructive unfair dismissal claims, the EAT stressed that when looking at the timing of the employee’s resignation the date is important but it must be considered in the context of the individual case

Chindove v William Morrisons Supermarket PLC [2014] EAT

The facts

The claimant Mr C was a black British employee who worked for Morrisons in its warehouse. The employment tribunal held that Mr C alleged he had been the victim of two incidents of race discrimination and the HR Manager for Morrisons had failed to investigate and report on Mr C’s last grievance and that these matters amounted to fundamental breaches of Mr C's contract. He brought claims for constructive and unfair dismissal (and race discrimination).

The Employment Tribunal’s decision

Mr C had resigned six weeks after the HR Manager had reported to him that there was no merit in his grievance. The problem for Mr C was that the employment tribunal concluded that he had affirmed the breach of contract because he delayed too long before resigning. His claim for constructive unfair dismissal was dismissed. Mr C appealed to the EAT.

The EAT’s decision

In relation to contructive unfair dismissal claims the EAT stressed when an employee resigns the date is important but it must be considered in context. Here the employment tribunal had failed to take into account the fact that Mr C had not been at work as he had been on authorised sick leave for the six weeks prior to his resignation.

The EAT explained that an employee demonstrates he has accepted (‘affirmed’) his employer’s breach of contract by conduct; for example by staying on at work and continuing to do his job. He may also affirm his contract in other ways, such as by what he says or by what he does.

The EAT said:

“. . . the issue is essentially one of conduct and not of time. The reference to time is because if, in the usual case, the employee is at work, then by continuing to work for a time longer than the time within which he might reasonably be expected to exercise his right, he is demonstrating by his conduct that he does not wish to do so. But there is no automatic time; all depends upon the context. Part of that context is the employee’s position.”

The EAT indicated that, on the facts of this case, it seemed to them that given Mr C’s eight years’ service he had not delayed too long before resigning especially as his sick leave had prevented him from returning to work.

In practice

This case reminds employers that the test for constructive dismissal is based on conduct rather than just the timing of any resignation. The context of any delay in resigning must be considered. Can the employee explain away the delay in resigning? For example was the employee waiting for a decision about a grievance or did the employee resign after being on sick leave? If so it is more likely the employee can argue successfully that the delay did not mean they affirmed or accepted any breach of contract and they can proceed with a claim for constructive unfair dismissal.

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