Constructive Dismissal, delays, and the potential consequences
Employees can resign and bring a claim of constructive unfair dismissal, where their employer commits a repudiatory (serious) breach of contract (usually their contract of employment). To bring the claim, the employee must accept the breach by resigning in response to it.
Where an employee delays before resigning however, Employment Tribunals are tasked with determining whether the length of the delay ultimately precludes their claim from succeeding, on the basis that the employee is deemed to have affirmed the contract to which the breach relates (i.e. waived the breach).
The recent case of Chindove v Morrisons Supermarket provides useful guidance on the factors to consider, when analysing an employee’s delay in the period between the employer’s breach and the employee’s resignation taking effect.
In this case, the employee suffered from two incidents of discrimination, before raising a grievance that was not immediately dealt with by the employer. There was a six-week delay between the grievance finding being communicated, and the employee ultimately resigning. However, in this case the employee in question was signed off work sick during the six-week period prior to his resignation.
The Employment Appeals Tribunal (“EAT”) found that the issue of delay should not be considered from merely a time perspective alone. It found that it should also be considered from a conduct perspective, considering whether by virtue of the employee’s actions, he/she can be said to have accepted the employer’s breach and resigned in response to it.
In providing guidance, the EAT said (unsurprisingly that there is no set period of time in which an employee’s delay can amount to his/her affirmation of the employer’s breach, and the Tribunal dispelled a myth amongst many that a period of around four weeks was the general yardstick against which employees would be considered to have affirmed a breach of contract.
It was also held that certain employees can wait longer to resign than others, depending on the circumstances. Where employees (such as Mr Chindove in this case) are off work sick, this needs to be taken into consideration in determining whether the employee has affirmed the breach or not.
The Tribunal acknowledged that it may take employees in these circumstances much longer to decide whether to resign, compared to an employee who was actively at work and not off sick. In contrast, this employee would be expected, on the whole, to make the same decision much sooner.
Mr Chindove’s sickness absence in this case, prevented the Tribunal finding that he had affirmed his contract of employment.
Going forwards, the case is a good reminder that employers should be mindful of these practical issues and the surrounding circumstances, remembering that even when a period of delay takes place, subject to the employee’s conduct during this time, a constructive unfair dismissal risk may still exist.