Constructive Dismissal – when should I resign?

What is Constructive Dismissal?

There are occasions when working for an employer that a situation reaches a point where you believe that the actions of the employer are such that there is no alternative but to resign. It might also be the case that the actions of the employer might justify a claim for constructive unfair dismissal. Generally, although there are exceptions to the rule, an employee needs to have 2 years service to bring a constructive dismissal claim and the justification to succeed in a claim can be very fact sensitive.

When is the right time to resign? - resignation and 'the last straw'

Leaving aside the justification of a claim of constructive dismissal, a question is very often raised as to when is the right time to resign. Typically, the general answer is that it is best to resign at the point at which an employer has breached the contract of employment (or the implied terms within it), often called a ‘last straw’ breach.

Employment law & Constructive Dismissal

However, a recent case at the Employment Appeals Tribunal (EAT) called Leaney v Loughborough University EA-2022-000931-NLD gave much needed clarity on situations where the resignation is not immediate. In this case an employee with some 40 years service resigned with notice very close to 3 months after what was considered to be the ‘last straw’ event. Whilst each case is very fact specific, the EAT made the following points for consideration:

1. What conduct there had been during the period between the last straw event and the notice of resignation, in this case lawyer led negotiations to resolve the issue and address the employee’s concerns.

2. The length of time the employee has already been employed might be a factor to consider in terms of how long the employee might need to make up his mind.

3. The individual situation of the employee including the need to consider carefully if they are abandoning a secure and stable job that would be difficult to replace, the loss of benefits that had built up over time, the loss of status and the financial situation of the employee, plus the upheaval and distress of having to leave a job.

4. The fact of whether or not the employee was signed off sick during the period between the ‘last straw’ and the resignation with notice (or at least part).

5. Overall, the consideration of the factors that led to the delay, rather that the pure fact of the delay itself.

Whilst the findings of the EAT did give some clarity to the issue of whether or not an employee who remains employed for a period of time has ‘affirmed the breach’, each situation is very fact sensitive and should be considered very carefully.

Ashley Hunt, Director and Employment Solicitor remarks:

"At Lawson West, we regularly and frequently provide advice on the strength of a claim of Constructive Dismissal, be that after an employee has resigned or before they have made that decision and we would recommend taking specific advice on this issue, if you are considering bring a claim to the employment tribunal or having to defend one.”

 

If you are an employee facing a potential unfair Constructive Dismissal please contact Lawson-West Solicitors. Contact Us and we will get in touch as soon as possible.

Alternatively, please Tel: 0116 212 1000 or 01858 445 480.

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