Affirmation of a Breach of Contract in Constructive Dismissal Claims

Affirmation of a Breach of Contract in Constructive Dismissal Claims

The Employment Appeals Tribunal (EAT) has recently considered whether a delay in resigning amounts to an affirmation of a breach of contract in a constructive dismissal claim.

In the case of Chindove v Morrisons Supermarkets the Claimant had been subjected to two acts of racial discrimination and the Tribunal held that this amounted to a breach of contract. These acts were initially investigated by the Respondent although the Tribunal found that the HR manager had ultimately failed to investigate the Claimant’s grievance. The Claimant went on sick leave and resigned 6 weeks later.

The Tribunal decided that the Claimant had affirmed the Respondent’s breach of contract as the last act of unfair treatment the failure to investigate the grievance took place six weeks before the Claimant’s resignation.

The EAT via Mr Justice Langstaff emphasised that the matter of time should not be taken in isolation and the timing of a resignation should not constitute the only relevant factor when determining whether or not a breach of contract has been affirmed. Instead the EAT held that the principle is whether the employee has demonstrated that they have made a choice which they will do by their conduct.

Employees will demonstrate whether they have accepted a breach generally by continuing to work in the job or by communications which show that they intend the contract to continue.

The EAT held that the issue is essentially one of conduct and not of time. The matter was sent back to the Employment Tribunal to be reconsidered.

This case demonstrates a shift in the approach followed by the Employment Tribunal when considering claims for constructive dismissal. It has generally been the case that where an employee does not resign immediately i.e. within days of a breach then the breach is affirmed and could not be relied on in a constructive dismissal claim.

However following this decision it will be necessary to look at the circumstances surrounding the resignation as well as the conduct of the employee to determine whether or not they indicate that they have accepted a breach even if a significant period of time has passed between the triggering event and the resignation.

If you believe that you have been unfairly dismissed by your employer or you have resigned due to bullying or for any other reason and you want to bring a claim for constructive unfair dismissal please contact the dedicated employment department at Michael Lewin Solicitors and we will be happy to discuss your potential claims with you.

Anthony Fox

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