Constructive Dismissal and Affirmation of Contract

Constructive dismissal occurs when an employee is forced to leave their job against their will because of a fundamental breach of contract by their employer. In order to succeed in a claim for constructive dismissal, the employee must show that they have not acted in a way that suggests that they have accepted the breach, which is referred to in legal parlance as 'affirmation of contract'.

In Chindove v William Morrison Supermarkets plc, the Employment Appeal Tribunal (EAT) has given guidance on the factors the Employment Tribunal (ET) should take into account when deciding whether or not an employee has, by their actions, affirmed their contract of employment following a breach.

Mr Chindove was employed by Morrisons as a warehouse operative from 2003 until he resigned in October 2011. Following his resignation, he brought claims of constructive dismissal and race discrimination on the ground that complaints he made after two separate incidents of racial discrimination and harassment against him by a fellow worker were not pursued to a satisfactory conclusion by his employer.

Although the ET said that each incident had amounted to a fundamental breach of Mr Chindove's contract by his employer, it found that Mr Chindove had affirmed the contract because it was some six weeks after the last act of mistreatment that he decided to resign.

The EAT overturned the ET's decision. In its view, passage of time viewed in isolation is not sufficient for the employee to lose the right to treat himself as dismissed. The principle is whether the employee has demonstrated by his conduct that he has decided to affirm the contract. This could be by what he has done or what he has communicated to show that he intends the contract to continue. Whilst continuing to work after the breach is indicative that the employee does not intend to exercise the right to treat himself as discharged, it depends on the context and not on any strict time test. Factors to be taken into account would include how easy it would be for the employee to find alternative work and whether or not the employee was actually at work and so seen to be continuing to honour their contract. Where an employee is sick and not working, 'that observation has nothing like the same force'.

In this case, Mr Chindove was off sick during the time in question and, for someone who has worked for their employer for eight or nine years, six weeks is a very short time in which to infer from their conduct that they have decided not to exercise their right to resign.

The case was referred to a fresh ET to determine whether, by his conduct, Mr Chindove had affirmed his contract of employment as continuing and had therefore lost the right to treat himself as constructively dismissed.

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