Constructive dismissal

Delaying for six weeks and accepting sick pay before finally resigning meant that an employee lost her chance to claim constructive dismissal because the delay was of such a length that she had affirmed her contract (i.e. effectively accepted her employer’s breach of contract).

If an employee has breached the implied duty of mutual trust and confidence at the time of their resignation, he or she cannot then terminate their contract because of the employer’s conduct and claim constructive dismissal.

The Court of Appeal held that the 'range of reasonable responses' test (well known in unfair dismissal law) has no relevance when deciding whether or not an employer has fundamentally breached an employment contract (such as to support a constructive dismissal claim).

The EAT has held that the monitoring of an employee who was disciplined for not following his employer’s procedures was a legitimate management instruction and not a disciplinary sanction – and as such did not give the employee the right to resign and claim constructive dismissal.

N’s contract allowed her to work from home for 4 hours a week. The rest of the time she was office based. There had been various changes to her contract, all agreed by both parties, but none involved any changes to her place of work or her ability to work from home.

Mrs A had worked, with an unblemished record, as a nurse in a care home for 32 years. She was suspended following two serious allegations of abuse. Before the investigation was concluded, she resigned, stating that she was ‘retiring’ (adding that her husband was terminally ill and that she wanted to spend more time with him).