Case update (2): Constructive unfair dismissal – sick and tired but not resigned yet…

Summary: Can delay in resigning for whatever reason, including sick leave, defeat an employee’s claim for constructive dismissal?

No, held the EAT in Chindove v Morrisons Supermarkets available here.

Background: An employee wanting to show constructive dismissal must demonstrate that:

• the employer committed a breach that was so serious that it entitled the employee to treat the contract as at an end;
• s/he resigned in response to that breach; and
• s/he did not waive the breach or affirm the contract, for example by delaying too long before deciding to accept the breach and resign.

Typically, the employee will resign and leave pretty much immediately but this is not always the case.

Facts: The employee, Mr Chindove was employed by Morrisons as a warehouse operative from 2003 until he resigned in October 2011. In December 2010 a fellow employee committed an act of racial harassment and discrimination against him. Mr Chindove complained but Morrisons never did anything about it. There was a second incident in March 2011 which amounted to racial harassment and discrimination. Mr Chindove put in a written grievance but there was no evidence on which his employer could take any action. It left him unhappy that it was not properly investigated and escalated it up to Head Office. He then went on sick leave and resigned on 18 October.

Mr Chindove brought two claims for constructive unfair dismissal, and race discrimination. On the constructive dismissal claim, the Tribunal considered that there was a six week delay between the last act of mistreatment on 9 September 2011 when the findings of the grievance were reported to him and when he decided to resign. He could not therefore claim that this was the ‘last straw’ and his delay in resigning, in the absence of such a ‘last straw’ event, was fatal to his claim.

Mr Chindove appealed and the EAT agreed with him. The EAT decided that the delay in resigning was not, of itself, fatal to his claim. The question of time is not to be taken in isolation. It all depends on the context. At one extreme is someone who could easily obtain employment elsewhere and should not delay in resigning for any length of time. On the other hand, there is someone who, like Mr Chindove, is off sick and, being away from the workplace, has quite some time to make up his mind before affirming the contract.   Where an employee is on sick leave, it is not so easy to infer that s/he has affirmed a contract because s/he is not at work as normal. The EAT held that six weeks is a short period of time from which to infer from Mr Chindove’s conduct that he has decided to waive the breach and affirm the contract.

Implications: The issue of an employee delaying their resignation too long after the ‘last straw’ event, rather than resigning immediately, is regularly used very effectively by employers defending constructive dismissal claims. This case helps to highlight that the question of whether such an employee has delayed too long before resigning, and so is to be treated as having waived the employer’s bad behaviour and ‘affirmed’ the contract, is more a question of the employee’s conduct than just mere lapse of time. This is especially relevant when an employee is on sick leave, as Tribunals are likely to treat such periods of delay differently to a period of delay by an employee attending work and carrying on as normal.