An employee wanting to show constructive dismissal must demonstrate that:
- The employer committed a breach that was so serious that it entitled the employee to treat the contract as at an end
- He resigned in response to that breach
- He did not waive the breach or affirm the contract, for example by delaying too long before deciding to accept the breach and resign.
Typically, the employee will resign and leave pretty much immediately but it is possible for the employee to give and work the notice whilst reserving the right to claim constructive dismissal.
The claimant had made a grievance complaint against his line manager which was rejected. He resigned in a letter to his line manager later that month, stating that he regarded the line manager's conduct and that of the employer as being so serious that he could not carry on with the company and that he was giving notice to expire seven months later. He went on "I have no other work secured to enable me to leave immediately and I need to work for a reasonable period of time and it is for this reason only that I am giving notice.”
When he brought a claim for unfair constructive dismissal the employer argued that the claimant had waived any breach, by giving seven months' notice – significantly longer than the three month notice period required by his contract, purely for financial reasons. The Tribunal and EAT agreed.