To succeed in a claim of constructive unfair dismissal, employees must not delay too long after the alleged breach before they hand in their notice. In Chindove v William Morrisons Supermarkets plc, the Employment Appeal Tribunal (EAT) held that the test for unfair constructive dismissal was one of conduct, not of time.
Mr Chindove, who had worked as a warehouse operative for William Morrisons from 2003, complained to the general manager, Mr Atwell, in December 2010 that he had been subject to harassment on the grounds of his race by a fellow employee. Mr Atwell promised to resolve the matter informally but never reported back to Mr Chindove.
After a further incident in March 2011, Mr Chindove submitted a formal grievance which was dismissed. He complained to head office who referred the complaint back to the HR branch manager. Although she reported back to Mr Chindove on 9 September, it transpired that she had not really investigated his complaint. Mr Chindove then tried to progress matters through head office again, using the company’s special complaints procedure. He received a letter on 11 October inviting him to a meeting at Wakefield. He resigned on 18 October 2011.
Mr Chindove claimed unfair constructive dismissal and race discrimination. Morrisons argued that he had delayed too long between the date of the acts of which he was complaining and the date of his resignation.
The tribunal found that the two acts of discrimination/harassment and the employer’s failure to deal with his complaints satisfactorily amounted to a fundamental breach of contract.
However, it did not accept that the letter of 11 October amounted to “mistreatment”. It followed that Mr Chindove had failed to establish that there was a “last straw” act. As the last breach took place on 9 September 2011(six weeks before Mr Chindove resigned), this amounted to a delay and he had therefore waived the breach and affirmed his contract. Mr Chindove appealed the decision to the EAT.
The EAT allowed the appeal and found that the tribunal had erred in finding that the delay in itself had defeated Mr Chindove’s constructive dismissal claim. The test for unfair constructive dismissal was one of conduct, not of time.
The Court of Appeal had said in Western Excavating Ltd v Sharp that employees must make up their mind (about whether to leave or not) soon after the conduct they were complaining about. However, the EAT emphasised that the main issue for tribunals to consider was not “time in isolation”, but whether the employee had made a choice about whether to leave. Usually that would be obvious from their conduct.
The reference to time was only significant in the sense that, if an employee stayed on at work for a longer period than might be expected, they would be demonstrating by their conduct that they did not wish to leave. But there was no automatic time limit; everything depended on the context in which employees found themselves and not on any strict time test.
In this case, the EAT did not think that six weeks for someone who had worked in a steady job for many years was an excessive amount of time to take before exercising their right to leave. It was significant that Mr Chindove was off sick during the period of delay.
As it was not possible to infer from his conduct within those six weeks that he had decided not to exercise his right to go, it remitted the case to the tribunal for a re-hearing.
The EAT has made clear that it is conduct and not time alone that will be relevant in determining whether an employee has waived a breach, and a delay in resigning will not necessarily defeat a constructive dismissal claim. It was significant that Mr Chindove was on sick leave during the period of delay. Had he been at work it could have been concluded that he was affirming his contract.