The effect of delay

Even if there has been a fundamental breach of the contract, an employee can lose the right to claim constructive dismissal by affirming the contract. Affirmation takes place where an employee shows, through words or actions (or inaction), that he or she is willing for the contract to continue. Delay is one of the most common forms of affirmation, so there should be no significant delay between the breach and the resignation.

The tribunal will examine all the reasons for any delay. There is no fixed length of delay that is “too long”. Simply protesting at the time of the unacceptable behaviour, without doing anything else, is unlikely to be enough, if the employee subsequently continues performing the employment contract. “Reserving the right to resign“ is a common tactic, but will not necessarily be effective. Sickness can sometimes help justify any delay (see for example, El Hoshi v Pizza Express Restaurants (EAT/0857/03)) but as always, it all depends on the circumstances of each individual case:

Resigning and claiming constructive unfair dismissal is a high-risk strategy and should always be a last resort. Anyone considering resigning and bringing a claim for constructive unfair dismissal should take careful advice first from a union rep. Acas also runs a national advice line — tel: 08457 474747.

There are many serious hurdles in the way of a successful claim for constructive dismissal, for example:

• This kind of claim can only succeed if the behaviour complained of was serious enough to qualify as a fundamental breach of the employment contract. A tribunal may not agree with an employee’s assessment of the seriousness of the behaviour.

• The tribunal may not agree that the employee resigned in response to the behaviour. If the tribunal concludes that the employee would probably have resigned anyway, there will be little, if any, compensation.

• The tribunal may decide that even though the employer’s behaviour was unacceptable, it repaired the breach of contract by its later actions, for example, apologising.

• A claim for constructive dismissal is usually all about facts — who said what to who and when. These issues must be proved using witness evidence. Co-workers are often unwilling to give evidence.

• Claims for constructive dismissal tend to be more expensive than ordinary unfair dismissal claims. Because they involve the tribunal making an assessment as to what happened, this usually means detailed cross-examination of witnesses. This in turn takes more preparation and hearing time, leading to higher legal fees.

• As with all unfair dismissal claims, even if you succeed in your claim, compensation is limited. In particular, it is not possible to recover compensation for losses that did not result from the dismissal (i.e. the resignation). Neither is there any right to compensation for injury to feelings or damage to health.

An employee considering resigning and claiming constructive dismissal should keep a careful record of the incidents they regard as amounting to a fundamental breach of the contract, and of all their efforts to have concerns dealt with properly. A copy should be kept of all relevant emails, including any sent to a line manager or to HR, as well as text messages or screen prints of social media.

Any resignation must be clear and unambiguous, spelling out the connection between the decision to resign and the events that have led to the decision.

An employee who has been made ill by work should visit a GP and keep copies of all referral letters, prescriptions and hospital appointments.

The breach of contract that leads an employee to resign can be either one act by the employer if it is sufficiently serious, or a series of actions which together amount to a breach. These are often referred to as last straw cases, and are common in situations of bullying and harassment, or where there has been a breach of trust and confidence in other ways. It does not matter if none of the incidents in themselves would amount to a serious breach, as long as taken together, they destroy the contractual relationship. However, reasonable or justifiable employer behaviour is unlikely to be regarded as a “last straw” justifying resignation, regardless of what came before (LB Waltham Forest v Omilaju [2005] IRLR 35)), so any employee contemplating resignation should ensure any eventual resignation is linked to an incident that is clearly and unarguably unreasonable.

A serious failure by the employer properly to investigate a grievance can be a breach of the duty of mutual trust and confidence capable of justifying a constructive resignation (dismissal). Every employee has the right to have a grievance dealt with. This is a fundamental right implied in every contract (W A Goold (Pearmak) v McConnell [1995] IRLR 516). But for a constructive dismissal to succeed on this basis, the resignation must be in response tothe employer’s failure to deal fairly and adequately with the grievance process, and not for some other reason — for example, because the employee did not agree with the final outcome of the grievance. This is a difficult distinction in practice. There is also a high-risk that an employment tribunal may not see the employer’s management of the grievance process as sufficiently flawed to amount to a fundamental breach of the employment contract.