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17 July 2014

Delay in resignation: constructive dismissal?

A recent decision of the Employment Appeal Tribunal (EAT) has considered whether an employee who delays his resignation due to a period of sick leave still has a valid claim for constructive dismissal.

Facts

The employee (Mr C) in this case submitted a written grievance to his employer, having previously complained about incidents of alleged racial harassment and discrimination by a colleague. He subsequently went on sick leave and eventually resigned, bringing claims of constructive unfair dismissal and race discrimination.

Mr C’s claim for constructive dismissal failed because of the six-week delay between the company’s last identified breach of contract (their delay in dealing with Mr C’s grievance) and the date on which he resigned. The tribunal decided that the six-week delay was too long for his resignation to be in response to the breach.

The claim for race discrimination likewise failed because the final discriminatory act occurred eight months before Mr C brought his claim.

Appeal

The EAT allowed Mr C’s appeal against the tribunal’s decision and remitted the case to be heard by a different tribunal.

The EAT considered there to be no set period of permissible delay in resigning after a breach which will not preclude a constructive dismissal; the appropriate period in any case will depend on the context.

In the EAT’s view, an important factor to consider is whether the employee was present at work or absent on sick leave during the period. If the employee was absent, it will be harder to infer that they were honouring the contract by continuing to work than if they were present in the workplace.  The EAT considered six weeks to be a short period of time from which to infer from Mr C’s conduct that he had decided to waive the employer’s breach and affirm the contract.

Comment

This case establishes that a period of delay when an employee is absent from work due to sick leave (and arguably absences for other reasons, such as maternity leave), should be treated differently than periods when the employee continues to work under the contract.  It means that employees in this situation are likely to have a longer period in which to decide whether or not to resign in response to an employer’s breach of contract.

A copy of the EAT judgment is available here.