When is a resignation constructive dismissal?

Constructive dismissal is a difficult subject for employers and occurs when employees allege that their employer has breached the implied term of mutual ‘trust and confidence’ in the employment contract, either through a single serious incident or a series of smaller incidents that cumulatively amount to a fundamental breach.

In the case of a series of smaller incidents, the employee must identify the ‘last straw’ (or the final incident that forced them to resign) and must resign immediately following the last straw event.

In a recent case, an employee who resigned following her unsuccessful internal appeal against a disciplinary penalty was held to have no reasonable prospects of success in her constructive dismissal claim. The last straw she had identified was ‘innocuous’ and did not breach her contract.

She was employed as a nurse and was subject to a formal capability procedure, which she alleged was unjustified. Later, she complained of bullying by colleagues. Following an altercation with another staff member she was disciplined for ‘inappropriate behaviour’ and given a final written warning. Her appeal was rejected and she resigned the next day.

What was the last straw that triggered her resignation? The employment tribunal held that it could not be the disciplinary process or appeal, as the employer had acted fairly and properly throughout.  This means that a properly followed disciplinary process, or its outcome, cannot be a fundamental breach of contract for the purposes of a constructive dismissal claim, or contribute to a series of events that are alleged to cumulatively breach the contract.

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