Delay in resigning

I’m off, but not yet!

As you’re aware, an employee can claim constructive dismissal should you breach an implied term of trust and confidence, e.g. by failing to treat them with respect and trust, or by consistently undermining them. Yet, there’s been no case law on whether a claim of constructive dismissal can be postponed for a particular reason in connection with the claim. What guidance can a new Employment Appeal Tribunal (EAT) offer?

Lots of complaints

This was considered in Quigley v University of St. Andrews 2006. Quigley (Q) was employed as a lecturer from February 1, 1999 until August 31, 2002, the date on which he claims he was constructively dismissed. During his employment, Q had various complaints, both against his employer and some of his colleagues. In early 2000, he had made a formal complaint about a colleague and after obtaining legal advice, had stated that he would “have little alternative but to explore constructive dismissal” if he didn’t get a satisfactory outcome. However, he didn’t pursue it. In 2001, he applied for a promotion to senior lecturer, but attached to his application were criticisms of his department and some colleagues. He failed to get the job.

Internal appeal

Q appealed this decision. Whilst his appeal was pending, a departmental review had been carried out. Even though it concluded that there had been unprofessional behaviour (as per Q’s complaints), no disciplinary action was taken. The final straw for Q was when his appeal was rejected in March 2002. However, he didn’t resign until late May. He then claimed constructive dismissal.

Stretching it out

Both the tribunal and the EAT rejected Q’s claim. One of the reasons was that his contention that the two-month delay was due to obtaining legal advice in connection with his case was unacceptable. Apart from the fact that Q had already been made aware of his legal position, allowing such an argument would defeat the concept of breach of trust and confidence. In other words, if a situation is genuinely one of constructive dismissal, an employee wouldn’t continue to work whilst taking so long to seek further legal advice.

Don’t chance it

As this case was decided before the statutory grievance procedures were introduced, the 28-day period between raising a grievance and bringing a tribunal claim is now the timeframe to follow. The question of this being extended to allow an employee to obtain legal advice shouldn’t arise. But ideally, deal with any grievance before it gets to the legal stage.

Tip. In more complex cases, e.g. those which require fact-finding, 28 days can pass quickly. So ensure that you always respond promptly. When you meet with the employee, deal with the complaint point by point so you don’t miss anything. Agree how each will be dealt with and explain why, if no action is to be taken. Also agree a date to meet and discuss progress. Whilst time consuming, it should help ensure that resentment doesn’t build up.