Constructive Unfair Dismissal: When to Resign?

Published : November 18, 2024

Constructive unfair dismissal is a claim that can be brought in an employment tribunal when an employee feels forced to resign due to their employer’s conduct. Senior associate Alex Hodson dives into when an employee should resign with respect to a constructive dismissal claim.

If you are looking for more in-depth information, take a look at our constructive dismissal guide. Alternatively, please don’t hesitate to reach out. We can offer a consultation to analyse your case and advise on the best course of action.

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Can You Be Forced to Resign?

Understanding Repudiatory Breach in Constructive Unfair Dismissal

There is an implied term in everyone’s contract that there must be trust and confidence between the employee and employer. If this is breached, it naturally amounts to a breach of the root of the contract and is, thus, repudiatory.

In order to establish constructive unfair dismissal, you must show that your employer committed a “repudiatory breach”. Here, a repudiatory breach can be a breach of either an express term or an implied term. However, in most claims, the most pursued breach is the breach of the implied terms of trust and confidence

Breaching Implied or Express Terms

An employee can resign in response to a series of courses of conduct by the employer, which cumulatively amount to a breach of trust and confidence. Hence, there does not need to be just one ‘breach’ of the contract.

Moreover, in these cases, an employee must show that there was a ‘last straw’ that ultimately forced them to resign. That final straw must not be trivial or innocent, and it must contribute something to the breach.

In Mostyn v S and P Casuals Ltd, the employment appeal tribunal found that the employer imposing a significant pay cut on a sales executive due to his dwindling sales figures amounted to a breach of the implied term of trust and confidence, and a breach of the express term of salary.

In contrast, in Adams v Charles Zub Associates Ltd [1978], a claimant pursued a claim for constructive unfair dismissal on the basis that he was not paid on time. The claimant was a member of the senior management team and was aware of the cash flow problems that the company was experiencing. He was, however, reassured that he would be paid as soon as the business was able to pay him. In this case, it was found that this was not a repudiatory breach of his contract.

Changes to Contractual Duties Can Lead to Constructive Unfair Dismissal

A change or reduction in an employee’s contractual duties could also be considered a repudiatory breach. The starting point here is the contract itself, which can be difficult as roles evolve, and often, job descriptions do not represent the actual duties undertaken. Therefore, in this scenario, each case is considered on its own facts.

Where discrimination has occurred, the employment tribunal will usually consider this to be a repudiatory breach. In Shaw v CCL Ltd, the employment appeal tribunal found that discrimination occurred when the employer rejected the employee’s request to work part-time. She was forced to resign as a result of that decision, and she proceeded to claim constructive unfair dismissal, which was found in her favour.

In KJ v British Council, an employee was sexually harassed by a senior male colleague. The employment tribunal found this was a repudiatory breach of contract.

For more examples, take a look at our constructive unfair dismissal guide.

Proving Constructive Unfair Dismissal

Whilst it must be shown that the employee resigned in response to the breach, it does not have to be the only cause of the employee’s resignation. It only needs to show that it “played a part” and was “one of the factors relied upon” in the employee’s resignation.

With this in mind, it is sensible to ensure that the resignation letter provides the reasons for the resignation. Failing to do so isn’t fatal to a constructive unfair dismissal claim, but it can help in its defence.

For more information and answers to FAQs, read our guide on resignations in a constructive dismissal claim.

Timing of Resignation

The timing of the resignation is also important to demonstrate that the employer’s conduct caused the resignation. An employment tribunal will review the circumstances and the nature of the breach when making a decision for constructive unfair dismissal.

If there’s been a significant delay in resigning, the employment tribunal may find that the employee ‘affirmed’ (accepted) the breach. Whilst some delay may not be considered an affirmation, a significant delay may be evidence of an implied affirmation.

Previously, in the case of Waltons & Morse v Dorrington [1997], the delay of a few weeks to find new employment before resigning did not amount to affirmation. Similarly, in Post Office v Roberts [1980], the employee carried on working for six weeks while her union investigated, but the position did not amount to affirmation.

If there is a Delay in Resignation Following Breach, It Should be Reasonably Justified

In contrast to the above, a seven-month delay was fatal to a Director’s constructive unfair dismissal claim (W E Cox Toner v Cook [1981]). Similarly, in Quigley v University of St Andrews, the Claimant argued that the delay was due to seeking legal advice, which helped his resignation decision. This wasn’t a sufficient reason for delaying and entirely undermined his claim that he resigned in response to a breach.

In another case, Fereday v South Staffordshire NHS Primary Care, the employee waited six weeks after the alleged fundamental breach to resign. The tribunal considered the circumstances, the reason for the delay, and the employee’s acceptance of sick pay during this time. This delay ultimately proved fatal for his claim.

These examples demonstrate that a tribunal judge will consider a case in its entirety, including the reasons for the delay. There’s no ‘fixed’ answer or specific time frame that an employee must resign within, as long as they can reasonably explain or justify any delay between the breach and the resignation, and they’ve made clear that they have not accepted the breach.

Resigning With or Without Notice

It has been previously held that an employee must resign without notice to succeed in a constructive unfair dismissal. Otherwise, they could be considered to have affirmed the breach.

However, over time, judges have moved away from this and again will consider each case on its own facts. If an employee resigns with notice but makes it “unambiguously clear” (this could be the contents of the resignation letter), then the employee may not be seen as affirming the breach by giving a short period of notice and continuing to work.

The Employment Rights Act 1996 has clarified that it’s possible to pursue constructive unfair dismissal claims ‘with or without notice’. But again, an employment tribunal judge will form their view of whether the employee has affirmed the breach when resigning with notice based on the facts of each case.

How Do I Start a Claim for Constructive Dismissal?

There is no right or wrong answer as to when an employee should resign. That being said, ensuring minimal delay in resigning will strengthen a claim of this type. The same applies to making the reasons for the decision clear in the resignation letter.

An employment tribunal will consider each case on its own facts. It will weigh up the circumstances, the seriousness of the breaches, and the employee’s actions in responding to them.

If you want advice on your resignation letter or the merits of your constructive unfair dismissal claim, please contact us. We can offer a consultation to analyse your case and advise on the best course of action.

To learn more about how we could help, please:

The information on this page is intended for general informational purposes only and does not constitute legal advice.