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Delay in resigning because of sick leave does not preclude constructive dismissal claim
In Chindove v William Morrisons Supermarket Plc, the EAT has held that the employee’s absence from the workplace due to illness prior to resignation was relevant to determining whether the delay in resigning in the face of the fundamental breach was fatal to a constructive dismissal claim. The EAT held that the test for constructive dismissal was one of conduct, not of time, and because the individual delayed resigning because he was on sick leave did not mean that it was easy to draw an inference that the delay precluded a constructive dismissal claim.
The Employment Tribunal rejected the claim for constructive unfair dismissal because it considered the 6 week delay between the last breach of contract and the resignation was fatal to his claim that the resignation was in response to the breach. However when the Claimant appealed to the EAT, it allowed the appeal and remitted the case back to a different Tribunal for rehearing. The EAT considered the delay point and considered that the amount of time between the breach and the resignation depended on context. For instance, employees with heavy family commitments requiring an income may delay longer in resigning because of the need for on-going financial input. It also considered the fact that the employee in this case was absent from work whereas, if he had been present, he could have been considered to have affirmed the breach. However, because he was on sick leave it was not so easy to draw this inference.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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