The claimant in Chindove v William Morrisons Supermarket Plcresigned after he objected to the way his complaints about alleged race discrimination by a fellow employee had been handled by his employer.
The Tribunal hearing the claimant's unfair constructive dismissal claim concluded that the employer's treatment of their employee amounted to a fundamental breach of contract entitling him to resign. The problem, in the Tribunal's view, was that he had "affirmed" the contract, by delaying for six weeks after the last incident of mistreatment by the employer before deciding to accept the breach and resign.
The EAT allowed the claimant's appeal. Passage of time is not in itself sufficient for an employee to waive a breach and lose the right to resign. The key issue is whether the employee has shown by his conduct that he has made a choice whether or not to affirm the contract. Continuing to come to work might be seen as conduct showing that the employee has made that choice but the EAT dismissed the idea that four weeks is the watershed date. How long an employee might take to come to the decision will vary depending on the employee's individual circumstances – six weeks for a warehouse operative, who had worked for eight or nine years in a steady job for a large company, is a very short time in which to infer from his conduct that he had decided to exercise his right to stay. And crucially, in this case, the employee was off sick at the relevant time – it is clearly more difficult to draw inferences about affirmation of contract where an employee is not actively working.