For a constructive dismissal claim to be successful the employer must have repudiated an express or implied term of the contract, the breach of contract must have played a part in the employee’s decision to leave and the employee cannot delay too long before resigning, otherwise it may viewed that he or she had affirmed the contract. In Chindove v William Morrisons Supermarket plc, the EAT had to consider whether a six week delay between the alleged breach of contract and the resignation meant that Chindove’s constructive dismissal claim could not succeed.

Chindove (C) alleged that he had been racially harassed and discriminated against by a colleague on two occasions. He felt his complaint about the first incident had not been dealt with properly. C’s grievance about the second incident was rejected on the basis of lack of evidence, so he escalated it to head office where it was dealt with by a human resources manager (HRM). C went on sick leave. A considerable period of time after receiving the grievance, the HRM reported her findings. C was not satisfied and invoked the employer’s special complaint procedure, but after receiving an invitation to discuss the matter, he resigned, 6 six weeks after the HRM contacted him. The tribunal rejected C’s constructive dismissal claim because the six-week delay between the HRM’s delay and C’s resignation was too long for his resignation to be in response to the breach. C appealed.

The EAT upheld the appeal. Delay in resigning, in itself, cannot defeat a claim for constructive dismissal. Whether an employee has affirmed the contract is an issue of conduct and not of time. The key question is whether the employee demonstrated that he or she has made the choice to affirm. The answer depends upon the context, part of which is the employee’s position. A key consideration is whether the employee was actually at work, indicating honouring the contract which is inconsistent with deciding to leave.  But if an employee is sick, that suggestion has nothing like the same force. Other contextual factors are the employee’s income and outgoings, ability to support their family and opportunities for other work. It would be no surprise if took longer to decide to leave where there are negative consequences, particularly if someone has long service. A fresh tribunal would therefore reconsider the case.

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