The second case on constructive dismissal is Chindove v Morrisons Supermarkets (2013). In this case the EAT had to consider whether a delay in resigning in response to a fundamental breach in and of itself amounted to an affirmation of that breach.
In this particular case the employee had suffered two acts of racial discrimination at work. Such acts amounted to a breach of contract but the employment tribunal held that the employee had affirmed the breach of contract because the last act of mistreatment which had been alleged (the HR manager’s failure to investigate the grievance) was six weeks before the employee’s resignation.
In this case the EAT noted that the matter of time (i.e. how quickly a breach was acted upon) was not to be taken in isolation. The main principle is whether the employee had demonstrated that he had made a choice, by his conduct, to accept the breach or affirm the contract. It was considered that an employee would be seen to be choosing to affirm the contract if they continued to work or if, by communications, they showed that they intended the contract to continue.
These two cases show why it can be difficult to bring constructive dismissal claims for employees. Employers can make it harder still if they act astutely as soon as they learn of a potential constructive dismissal claim. It may be possible, for example, that employers can find or set up arguments that an employee has affirmed a contract if it carefully manages the situation in respect of alleged breaches.
For more information, help or advice please contact Tim Davies on 0191 211 7927.