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Delay cost the employee the right to claim constructive dismissal

Posted by TonyBrownEmploymentSolicitor on July 15, 2013

It has long been the case that a serious breach of the employment contract by an employer can justify an employee resigning and claiming constructive dismissal.

However, to succeed with constructive dismissal the employee must not delay too long in resigning. This is because, when faced with the employer’s breach of contract, the employee must choose either to treat the contract as at an end or to treat the contract as continuing by ‘affirming’ the contract.

Although the employee does have some time to choose whether to affirm or terminate, doing nothing for too long may be treated as an affirmation.

In the next case, although the employer had breached the Claimant’s contract in a way that would have entitled her to resign, she had delayed too long in resigning.

The facts in that case were that the employer had breached the Claimant’s contract on 15 February (when the Claimant was off work with stress.) She attended a meeting with the employer on 23 March when she was given three options – to return to her existing role, to consider vacancies within the organisation or to resign. She did not reply until 26 May when she e-mailed the employer to say that she was about to start a stress-control course which she hoped would make her better and asked to be sent details of internal vacancies. However, on 8 June, the Claimant changed her mind and resigned.

Dismissing her claim for constructive unfair dismissal, the tribunal ruled that the Claimant had affirmed her contract on 26 May, thereby losing the right to treat herself as dismissed. And in any event, the four months delay between the breach of contract and her resignation was too long. The EAT agreed.

Comment

In this case, the EAT rejected the Claimant’s argument that because she was not at work and not receiving sick pay meant that she could not be taken to have affirmed the contract

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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