The employee in Ogilvie Construction Ltd v Brown had for many years been a general foreman for a construction company. While working on the "Hungry Horse" project he was told he was to be promoted to site manager. However, the employee was concerned about the additional hours involved. He raised this in an email at the time and continued to mention it several times during the period from June to November 2014. He also made clear to his employer that he would be happy to be replaced and work standard hours. No action was taken and ultimately, on 24 October 2014, the month before the Hungry Horse project was due to complete, he emailed his employer a letter headed "4 weeks notice" and stating "Just to confirm I would like to give you notice to finish up in four weeks from this position."

In a telephone conversation with his employer on 26 October he discussed the email he had sent and commented that, although he was willing to work in a foreman role, as there was none on offer he was "happy to move on". The next day the employer sent him a letter accepting his resignation. The employment ended on 21 November and that day he sent another email saying "if things pick up and you are looking for a foreman, then let me know".

The Tribunal upheld the employee's constructive unfair dismissal claim. The employer had breached its contractual duty to the employee by requiring him to work excessive hours and ignoring his complaints and this amounted to a fundamental breach of contract entitling the employee to resign.

The point seized on by the employer in the appeal was that the claimant had said in his evidence that his 24 October letter was not intended to give notice of termination of employment but rather to indicate that he was giving notice of going back to his general foreman role. The employer argued that the claimant had not resigned and could not therefore claim to have been constructively dismissed.

The EAT dismissed this. The surrounding circumstances all supported the fact of resignation. The employer had sent the claimant a letter accepting his resignation and setting out the arrangements for termination of employment. The claimant had not responded by saying that the employer had misunderstood the position. Quite the contrary – he had gone ahead and arranged alternative employment and had given no indication to the employer that they had misinterpreted his notice by treating it as a resignation. In any event, evidence of a former employee as to his intention is not necessarily determinative; the real test is how the notice would be understood by a reasonable recipient.