Good question. On 29 May our Employment Alert looked at the danger of an employee delaying their departure following a resignation in which they allege constructive dismissal. But what about a delay in the resignation itself?
Lord Denning famously said that the employee “must make up his mind soon” or else he will have ‘affirmed’ the contract, losing the right to claim constructive dismissal.
In the recent case of Chindove v Morrisons Supermarket plc[UKEAT/0201/13/BA], the lay members of the EAT said that a delay beyond four weeks is the 'watershed date'. However, Judge Langstaff said the question is not just one of time but also one of conduct and personal circumstances:
“Deciding to resign is for many, if not most, employees a serious matter. It will require them to give up a job which may provide them with their income, their families with support and be a source of status to him in the community. His mortgage, his regular expenses may depend upon it and his economic opportunities to work elsewhere may be slim.”
It all depends on the context. At one extreme is someone who could easily obtain employment elsewhere and should not delay for any length of time. Perhaps four weeks is the watershed for them. On the other hand, there is someone who, like Mr Chindove, is off sick and, being away from the workplace, has quite some time to make up his mind before affirming the contract.
Perhaps the best advice for any employee is not to delay too long but also not to rush headlong into a hurried resignation. Tribunals always respect a rational approach and tend to dislike hotheads. An employee should consider placing in writing that they regard the contract as fundamentally breached but that they are prepared to delay the resignation pending an acceptable resolution, for example through the grievance process. Although a decision will still be required, this should buy them a week or two more. For the employer, it is an opportunity to put things right or to explain clearly to the employee why he is in the wrong.