28 Jan Resigning from your employment
Some employees during the course of their employment are unhappy and choose to resign or strongly feel that they do not want to continue to work where they are. If the employer or an employee of the employer has done something to trigger this and the employee resigns in response, this could be regarded in law, not as a resignation but a dismissal by the employer. This in turn gives rise to legal claims against the employer. The claim is commonly known as “constructive dismissal”. If the employee has been employed for more than two years, the claim is commonly known as “constructive and unfair dismissal”. For such a claim to succeed, the employee would have to show that the employer has committed a fundamental or repudiatory breach of contract which might be a breach of an express or implied term of the contract of employment. An implied term of every contract of employment is the obligation of mutual trust and confidence. If the employer without reasonable cause, acts in a manner that is calculated or likely to destroy or cause serious damage to the relationship of trust and confidence between the employer and employee, then this is a potential breach that could result in an employee succeeding with a claim. Further requirements are that the employee must resign in response to that breach and the employee must not delay too long before resigning, which might evidence that they are affirming their contract.
The Employment Appeals Tribunal case of Gordon v J & D Pierce (Contracts) Limited touches upon this latter point of delaying too long before resigning. In this case, the Employment Tribunal concluded (in the alternative) that the Claimant had affirmed the contract by continuing in his employment. It was argued on appeal by the Claimant that it was an error of law for the Employment Tribunal to have concluded that he had affirmed the contract by pursuing a grievance via the employer’s grievance procedure. Although, in this case, the Claimant lost his appeal for other reasons, the Employment Appeal Tribunal concluded that taking out a grievance does not, in itself, result in the employee affirming the contract. In doing so, Lord Summers stated,
“It would not appear to me that exercising a right of grievance or appeal (or for that matter persisting in a grievance or right of appeal) should be regarded as an affirmation of the contract as a whole” and, “Grievance or appeal provisions may be regarded as severable from the remainder of the contract and capable of surviving independently even though the remainder of the contract is properly regarded as terminated through breach.”
The above case demonstrates that reliance by an employer upon delay to an employee’s resignation pending the outcome to their grievance is unlikely to be an effective defence against a claim for constructive dismissal. Despite the conclusion of the above case, employees should exercise caution in delaying resigning when they have made up their mind that they can no longer be employed.