One of the fundamental principles of claiming constructive dismissal in the UK is that you should not leave it so long between the employer’s breach of contract and your resignation that you are deemed to have accepted or waived that breach. If you resign only after that point then you will be found just to have resigned, and so left feeling a bit of a chump.
So how long is too long? Back in 1978 the Court of Appeal said that “The employee must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged”. That implies that the passage of time by itself will be the only decider. However, inChindove –v- William Morrisons Supermarkets Plc, the EAT has this month put a gloss on that test – the principle is “whether the employee has demonstrated that he has made the choice [between affirming the breach or not] ….the issue is essentially one of conduct and not of time”. The EAT Judge had apparently heard from the lay members of an idea in circulation that four weeks would normally be the cut-off date. He was clear in response that “there is no automatic time; all depends upon the context”.
Mr Chindove left it six weeks between the act he relied upon as the employer’s breach of contract and his resignation. Morrisons argued that this was so long that he had to be taken to have waived the breach, so killing his own constructive dismissal claim. The Employment Tribunal agreed, though its failure to give any reasons compelled the Employment Appeal Tribunal to look at the question again and to make the context point above.
Some points arising from that decision to note when considering your own response to an employee who either does or threatens to resign some material time after whatever it is he is complaining about:-
- Is the employee actually at work in the intervening time? Here Mr Chindove had been off sick for most or all of it, and so the passage of time could not really be held against him to that extent.
- In his personal circumstances, how long should the employee need to make up his mind? If his job is his family’s only income, he has been in it for many years and his re-employment prospects are dim, it would be both sensible and reasonable for him to think long and hard before taking the drastic and irreversible step of quitting. He would be entitled to time enough to take advice on his position from lawyer or union, and to explore the job market by way of mitigation. Given the potential impact of the decision on his family, some consultation there could also be expected. Remember that an Employment Tribunal will always tend to favour an employee who can credibly put forward such excuses as a reason for not acting sooner.
- What has the employee done to verbalise his position? If he says that he objects to a particular breach by the employer but expressly reserves his right to react to it later (for example, after the outcome of a grievance about it) then he can extend that window (though not indefinitely – he would then have to act very swiftly after that grievance outcome).
- Against that, an employee’s failure to complain, though not determinative, could point strongly towards affirmation, especially if the breach is of immediate adverse impact on him and he does nothing about it.
- If your employee has not yet resigned, and you do not wish him to do so, take urgent steps to remedy his concerns. Once the contract has been breached by the employer it is hard to repair it effectively as a matter of law. Nonetheless, prompt remedial steps may prevent a nearly-breach becoming the real thing, or may lead the employee to affirm the breach anyway.