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 occurs where an employee behaves, through words or actions (or inaction), as if they are willing for the contract to continue. Delay is one of the most common forms of affirmation.

The tribunal will examine all the reasons for any delay. There is no fixed amount of delay that is “too long”. Simply protesting in writing at the time of unacceptable behaviour, and then continuing to work as normal, is unlikely to be enough to resist an argument that the contract has been affirmed. Continuing to work under protest for just a few weeks, having communicated clearly to the employer that the position is not accepted, may not amount to an affirmation of the contract. However, at the very least, the employee should regularly renew their objection, for example, on each monthly pay day (Burdett-Coutts v Hertfordshire County Council [1984] IRLR 91).

As always, everything depends on the circumstances of each individual case. Sickness can sometimes help justify any delay (El Hoshi v Pizza Express Restaurants [2004] UKEAT 0857/03/2303). In Munchkins Restaurant Limited v Karmazyn [2010] UKEAT 0359/09/2801, four low paid waitresses did not affirm their contracts even though they remained in their posts for between one and five years while subjected to intolerable behaviour by their line manager, Mr Moss. The EAT emphasised that many low paid workers are often forced by limited economic choices to put up with unwanted conduct. These waitresses had not resigned sooner because they were migrant workers with parental and financial pressures. They feared they would not get another job, and they were able to draw support from their good relationship with each other and the assistant manager, who, until his departure, had acted as a buffer between themselves and Mr Moss. The EAT agreed with the tribunal that the waitresses had not affirmed their contracts by staying in their jobs until they resigned. Instead, they had been constructively dismissed and could pursue their claims.

Resigning and claiming constructive unfair dismissal is a high-risk strategy and should always be a last resort. Anyone considering this course 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:

• the behaviour complained must be serious enough to be a fundamental contract breach. But a tribunal may not agree with an employee’s assessment of the seriousness of the behaviour;

• the employee must show that they resigned in response to the behaviour. But a tribunal may conclude that the employee would probably have resigned anyway, in which case, compensation will be significantly reduced;

• even if the employer’s behaviour was unacceptable, a tribunal could decide that later steps taken by senior managers or HR, such as apologising and offering redress, prevented a fundamental breach from taking place (Assamoi v Spirit Pub Company (Services) Limited [2011] UKEAT/0050/20/3007);

• co-workers may be unwilling to give evidence to the tribunal about a manager’s bad behaviour, making the claim difficult to prove;

• claims for constructive dismissal tend to take longer and consequently be more expensive than ordinary unfair dismissal claims. This is because they usually require detailed analysis of facts and cross-examination of witnesses;

• even if the claim is successful, compensation is very limited. In particular, in a claim for unfair dismissal (unlike a discrimination claim), there is no right to compensation for injury to feelings or damage to health, no matter how badly the employer has behaved.

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, keeping copies, if possible, of relevant emails, text messages or screen prints of social media that help to prove the claim.

Any resignation must be clearly written, spelling out the connection between the decision to resign and the events that have led to the decision. The choice of language must be considered very carefully and legal advice should be taken.

An employee 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 no single incident would amount to a serious breach, as long as taken together, they destroy the contractual relationship. However, reasonable behaviour by the employer 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.

Serious failure to investigate a grievance can be a breach of the duty of mutual trust and confidence capable of justifying a constructive dismissal. Every employee has an implied fundamental right to have their grievance dealt with (W A Goold (Pearmak) v McConnell [1995] IRLR 516). However, to succeed on this basis, the resignation must be in response to the employer’s failure to deal fairly and adequately with the grievance process, and not for some other reason, for example, because the employee disagrees with the grievance outcome. There is also a risk that an employment tribunal may not agree that the grievance process was flawed enough to amount to a fundamental breach of the employment contract.

A claim for constructive unfair dismissal must be launched within three months of the resignation date (the Effective Date of Termination, see page 299), whether or not the grievance process has not been completed, and regardless of whether any appeal is still outstanding.

Although the tribunal has discretion to extend time where it was not reasonably practicable to issue the claim in time, the fact that a grievance process has not been completed is not regarded as a good excuse for missing the deadline. (See Extending time to bring a dismissal claim on page 301).