The Employment Rights Act 2025 provides that any agreement preventing a worker from making...
Delay in Resigning - Constructive Dismissal
How Long is 'too long' if an employee delays in resigning?
It is a well known principle of the law of constructive dismissal that an employee should not delay too long in resigning otherwise he will lose the right to treat himself as constructively dismissed. In other words, he will be regarded as having affirmed the contract.
However, what is not so clear is just how long is too long in terms of delay. This issue was addressed by the Employment Appeal Tribunal [‘EAT’] in Chindove v Morrisons Supermarket Plc. The EAT allowed Mr Chindove’s appeal on the basis that the tribunal had not provided sufficient reasons as to why they felt that his delay of 6-weeks before resigning was sufficient for him to have affirmed the contract. Whilst the EAT did not specifically say so it is clear from their decision that they felt that on the facts of this particular case a delay of 6 weeks should not have been regarded as sufficient for the employee to have affirmed the contract, particularly where Mr Chindove had been off sick for the entire 6 weeks.
The EAT provided some useful guidance on the approach to be taken by tribunals on considering the vexed question of delay and affirmation of contract.
- There is no set or automatic length of time, following a ‘last straw’/breach of contract after which an employee will be regarded as having affirmed the contract.
- The issue is one of conduct and not time per se. For example, if the employee continues to attend work following the ‘last straw’ and does not complain that could be viewed as conduct by which the employee demonstrates that he accepts the breach and affirms the contract.
- However, it all depends on the context. An employee who, for instance, has worked for the employer for several years, relies on his salary to support his family and whose job is a source of status to him in his community; and whose job prospects elsewhere maybe slim, may understandably take longer in deciding whether to take the drastic step of giving up his employment. On the other hand there may be employees for whom those conditions do not apply with the same force and would not be expected to take as long to decide on resigning.