Should I Resign?

Head of Employment Law, Kate Lea, explains...

I have long held the belief that it is a brave, or fool hardy lawyer who recommends that a client resign from their employment with a view to pursuing a claim for constructive unfair dismissal.

That is not to say this is not an option for an employee who finds themselves in an impossible work situation.  If a client was to say they felt this was their only option, I would respect that. I would never tell a client to remain in a role that was having a detrimental impact on their health and wellbeing.  However, any decision to resign must be theirs.  I see my job as their lawyer is to provide advice to enable them to make well considered decisions.

All my client’s share a genuine sense of injustice.  All are resolute in their belief that they have been wronged and have meritorious claims.  I don’t doubt that, and I am pleased to report that I have pursued several successful claims for constructive unfair dismissal over the years.  However, it would be remiss of me not to recognise and advise my client’s that constructive dismissal claims are inherently difficult claims.  Why? 

The legal test requires a successful claimant to be able to evidence that the employer’s conduct was sufficiently serious to constitute a repudiatory breach of contract.  It requires the claimant to show that the employer’s breach went to the root of the contract and effectively destroyed the employment relationship enabling the claimant to treat themselves as discharged from further performance of the employment contract and as being constructively dismissed.  The claimant must show that the ‘fundamental’ breach caused them to resign, without undue delay.

All too often claims fail because the Tribunal does not share the Claimant’s view that the employer’s conduct was sufficiently serious and/or, that it caused them to resign.  On other occasions the Tribunal finds the Claimant has affirmed the breach when delaying their resignation thereby losing the right to claim constructive dismissal.

This was seen recently in the case of McKay v Jet2 when a Tribunal rejected a claim of constructive dismissal by a flight attendant who quit in a row about a haircut which the employer said did not confirm with their uniform policy.

More recently in Guest v Citizens’ Advice Bureau a solicitor, whose values were called into question after she openly criticized her employer’s policy designed to reward hard working staff, found her claim of constructive unfair dismissal was dismissed notwithstanding that the actions of her employer being recognised as “ill judged” and “inappropriate” but ultimately was not sufficiently serious to amount to a breach of implied mutual trust and confidence.

If you are reading this article and are thinking about whether or not to resign seek urgent advice about your options. We have a team of experienced solicitors at Lawson West who can talk through the options to enable you to make the right decisions for you.

Please contact us on telephone 0116 212 1000 or 01858 445 480, alternatively fill in the free Contact Us form and we will get in touch as soon as possible.

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