The concept of constructive dismissal is rooted in contract law. If the employer’s behaviour is so poor as to be a breach of the employment contract, the employee is entitled to resign in response and treat themselves as dismissed. In its most obvious form, a constructive dismissal involves the employee resigning and leaving employment on the spot, having told the employer in no uncertain terms why they believe the employment contract has been breached. Indeed, in pure contract law, to remain at work would be an 'affirmation' of the contract and would defeat the claimed constructive dismissal. The Employment Rights Act modifies the position by still allowing an employee to claim constructive dismissal even if they give notice. It is accepted that they may need the financial benefit of some of the notice period or want to remain at work for a short time, for example, to assist a colleague with handover, etc. Crucially though, an employee must not:
- delay too long in their resignation; and
- give equivocal reasons as to why they are leaving.
To do so would mean there is no constructive dismissal.
In the case of Cockram v Air Products plc, the EAT reminded us that too long a delay in leaving employment, not just a delay in resigning, will defeat the claim. Mr Cockram gave unequivocal reasons for his resignation (what he regarded as an unfair grievance decision) but explained that, for financial reasons, he had to work a notice period. However, he gave seven months’ notice rather than his contractual three months’ notice. On these facts the EAT held that Mr Cockram had affirmed the contract and was no longer able to claim constructive dismissal.
Ultimately, when an employee shouts 'I resign', to hang around too long is always dangerous.