Six Week Delay in Resigning Did Not Preclude Constructive Dismissal Claim

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Posted on 02 Jul 2014

A six week delay in resigning did not preclude an employee from claiming that he had been constructively dismissed.

In Chindove v William Morrisons Supermarkets plc, after raising two grievances about race discrimination, C went on sick leave whilst the second grievance was being considered. He resigned six weeks after his second grievance was rejected and claimed unfair constructive dismissal.

The employment tribunal held that the fact that C waited six weeks before resigning meant that he could not claim constructive dismissal.

The Employment Appeal Tribunal upheld C’s appeal. Delay in itself does not defeat a claim for constructive dismissal, although it may be a relevant factor. The key issue is whether the employee has shown by his conduct that he has made a choice whether or not to affirm the contract. There is no set period of permissible delay in resigning after which a constructive dismissal is precluded. The period will depend on the context. It is necessary to look at the employee’s conduct and whether what he does indicates that he is affirming the contract.

The fact that C was on sick leave was important. If an employee continues to work following a repudiatory breach, this suggests that they are honouring their contract, which is inconsistent with constructive dismissal. However, where an employee is on sick leave it is not so easy to infer that they have affirmed the contract. In the EAT’s view, six weeks for a warehouse operative who had worked for nine years in a steady job for a large company was a short period of time from which to infer from his conduct that he had decided to waive the breach and affirm the contract.

The case was remitted to a fresh employment tribunal to reconsider the issue.

Employees who resign and claim constructive dismissal will often be on sick leave at the time of their resignation as a result of stress or anxiety caused by their dispute with their employer. This case indicates that such employees may have longer in which to decide whether to resign, as their continued employment (without working) is less likely to indicate that they have decided to affirm the contract. It is the conduct of the employee that is key, rather than any delay in resigning per se. Tribunals will therefore need to look at an employee’s conduct overall to see if anything they did indicates they were affirming the contract.

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