The employee must not have waived the breach


Even if there has been a fundamental breach of the contract, the employee will lose the right to claim constructive dismissal if they waive the breach by behaving (through action or inaction) as if they are willing for the contract to continue. The legal term is “affirmation” and it can be express (communicated orally or in writing) or implied (based on how the employee’s behaviour appears to an outsider). 


Delay is one of the most common forms of affirmation. In Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal acknowledged that giving up a job is a very serious business and that the greater the risks to an employee’s financial security, the less hasty a tribunal should be to infer that by delaying their resignation, an employee necessarily intends to send the message that they are willing for the contract to continue. Even so, delay is a significant issue in many claims for constructive dismissal.


Delay on its own does not mean that the employee has affirmed the contract, and there is no rule that a particular amount of delay will always result in affirmation (WE Cox Toner (International) Ltd v Crook 1981 ICR 823). Instead what matters is the message sent by the delay. All the circumstances are important. The more serious the behaviour, the less likely a tribunal is to infer that by delaying for a short while, the employee intended to give up their rights. For example:


Voluntarily working more than your minimum contractual notice after a contract breach is likely to be treated as evidence of affirmation: 


Simply protesting in writing at the time of the unacceptable behaviour and then continuing to work as normal is not enough to preserve the right to resign and claim constructive dismissal. Continuing to work under clear protest for a very short time, after communicating clearly to the employer that the position is not accepted, may not amount to an affirmation, but everything depends on the facts of each case. At the very least, employees should regularly remind the employer of their objection (Burdett-Coutts v Hertfordshire County Council [1984] IRLR 91). Legal advice should be taken as soon as possible. In practice, proceedings will need to be issued quickly if a resolution cannot be reached.


It is possible to affirm an employment contract when off sick by continuing to accept sick pay after a fundamental contract breach, instead of resigning and claiming constructive dismissal. Everything depends on the particular facts of the case. Someone who is obviously too ill to bring a claim will not affirm their contract by remaining employed off sick and accepting sick pay, but someone who carries on accepting sick pay even though they are well enough to resign and bring a claim is likely to find they have affirmed their contract. All that can safely be said is that an innocent employee faced with a repudiatory breach does not affirm the contract just by continuing to draw sick pay for a limited period while protesting the position (Columbar Mari v Reuters Limited [2014] UKEAT/0539/13/MC). For example: