To win a claim of constructive unfair dismissal a Claimant must demonstrate fundamental breach of contract and that they resigned in response to the breach (without delaying too long).

In the Tribunal case of Mr Morgan v Halls of Gloucester, Mr Morgan’s claim of constructive unfair dismissal was dismissed.  The Tribunal found that two acts of racial harassment did take place in March and August 2008 but the Claimant waited too long before resigning in November 2008.

The EAT have determined that this was an erroneous judgment.  They referred to the finding of the Tribunal that the employer tolerated racial banter in the workplace and the expression of extreme forms of racial prejudice and this culture did not change before the Claimant’s resignation.  Therefore, the Tribunal, rather than focusing on isolated acts should have considered whether that state of affairs constituted a continuing breach of trust and confidence.

The case has been remitted to Tribunal