Resignation and Constructive Dismissal

In Chindove v William Morrisons Supermarket Plc UKEAT/0201/13/BA, the Employment Appeal Tribunal (EAT) considered whether an employee had lost the right to claim constructive dismissal because he had delayed in resigning.

Mr Chindove, a warehouse operative for William Morrison Supermarket Plc (Morrisons), raised a number of internal complaints of race discrimination, which were either rejected or not investigated.  He resigned six weeks after Morrisons' last significant failure to deal with his complaints and brought a claim for constructive dismissal.  The Employment Tribunal found that although Morrisons' conduct amounted to a fundamental breach of contract, by delaying six weeks in resigning Mr Chindove had affirmed the contract (i.e. acted as though the contract would continue) and so lost his right to such a claim.  The EAT held that this was wrong.  While such a delay was one of the factors that could be taken into account, it was not of itself determinative of the issue.  The Employment Tribunal should have looked at Mr Chindove's overall conduct to determine whether he intended the contract to continue.  Mr Chindove had actually been off sick (and so not at work) during the six week period, and this hadn't been considered.  The case was therefore remitted to the Employment Tribunal for a re-hearing.

While this is not new law, it is helpful in setting out how Tribunals deal with constructive dismissal cases which often raise complex legal questions.  It also serves as a warning to employers that employees may still be able to bring a constructive dismissal claim even where they have not walked out of their job immediately.