Constructive dismissal occurs where an employee resigns in
response to their employer’s fundamental breach of contract. In such cases, the employee is treated as if
they were dismissed.
Where an employer commits a fundamental breach of contract,
the employee has a choice:
1. they
can accept the breach and resign in response to it; or
2. they
can waive the breach and affirm the contract.
In Chindove v Morrisons Supermarkets, the Employment Appeal
Tribunal (EAT) has considered whether there is a time limit in which the
employee must accept the breach of contract and resign.
Mr Chindove suffered two incidents of race discrimination at
work, neither of which was properly investigated. Six weeks after the HR Manager failed to
investigate Mr Chindove’s grievance, he resigned and sought to claim
constructive dismissal.
The EAT were not persuaded that there is a set time limit
during which the employee must elect not to affirm the contract. They held instead that it depends on the
circumstances of each case. It is
important to consider whether the employee has affirmed the contract by what he
says or does. It is also important to
consider whether the employee was actually at work during the relevant
period. In this case, Mr Chindove was
off sick during the six week period.
This, combined with his long service as a warehouse operative, led the
EAT to uphold his appeal.
The case has now been remitted to a Tribunal to consider
whether Mr Chindove did resign in response to his employer’s breach of
contract, allowing him to treat himself as constructively dismissed. This is a reminder to employers not to ignore
employees’ grievances. Had the employer
in this case properly investigated Mr Chindove’s complaints of race
discrimination and reported back to him with their findings, the case may never
have arisen.