Constructive dismissal occurs when an employee terminates their employment in response to treatment they have received from their employer. Although the employer has not dismissed the employee and there has been no actual dismissal, the treatment would be regarded as being sufficiently serious to constitute a breach of contract and consequently to enable the employee to regard themselves as having been dismissed.
Following the employer’s breach, the employee can either “affirm” the contract and insist on its continued performance, or “accept” the employer’s breach and bring the contract to an end (by resigning). If the employee affirms the contract then they are indicating that despite the breach, the employer wants the employment relationship to continue. If the Employment Tribunal finds that an employee has affirmed a breach of contract then it is likely that any claim for constructive dismissal will fail.
While delaying in resigning may not necessarily amount to “affirming” the contract, an unreasonable or prolonged delay in resigning may indicate the employee affirms the contract and loses his or her right to raise a claim for constructive dismissal. This principle has recently been tested by the Employment Appeal Tribunal which was recently asked to determine whether an employee can be held to have affirmed a breach of contract (and therefore lose their claim for constructive dismissal) if he or she gives longer than the contractual minimum notice period. Although each case will stand on its own facts, the EAT confirmed that yes, in circumstances where the employee gives longer than the required notice period, he or she could be seen to have affirmed the breach of contract.
In practice it is uncommon to see employees providing notice to their employers which is beyond the minimum amount of notice required in the employee’s contract. The above case does however illustrate that employees failing to take prompt action may lose their ability to successfully claim constructive dismissal.
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