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Constructive Dismissal and Affirmation of Contract

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Thanks to Rad Kohanzad of Serjeants’ Inn Chambers for preparing this case summary

Can delay in resigning in and of itself amount to an affirmation of a breach of contract?

No, held the EAT in Chindove v Morrisons Supermarkets.

The employee suffered two acts of racial discrimination at work, which the employment tribunal held amounted to a breach of contract. Although initially investigated by the employer, the HR manager ultimately failed to investigate the employee's grievance.

The employment tribunal held that the employee had affirmed the breach of contract because the last act of mistreatment, the HR manager's failure to investigate the grievance, was some six weeks before the employee's resignation.

Langstaff P emphasised that the matter of time is not to be taken in isolation. Rather, the principle is whether the employee has demonstrated that they have made a choice, which they will do by conduct.

They will do so, generally, by continuing to work in the job or by communications which show that they intend the contract to continue. But the issue is essentially one of conduct and not of time.