It’s trite law that, in order to bring a successful constructive dismissal claim, the resignation must be in response to the breach. It is therefore imperative that employees do not delay in resigning. In the EAT case of Mr Chindove v Morrisons the Claimant resigned 6 weeks after the alleged breach. The ET held that this was too late for the Claimant to be entitled to accept the breach. The EAT held this decision was in error, namely because no reasons were given by the ET for this decision and, crucially, had there been reasons these should have considered the fact the Claimant was off sick at the time and this issue of delay has to be considered differently where an employee is not actively working.
The lesson for employers? A 6 week delay in resigning may be sufficient lapse of time to sound the death knell for a constructive dismissal claim but not necessarily so, particularly if this period includes time absent from work.