Among the difficult employment-law concepts that employers often have to wrestle with is the concept of constructive dismissal. The basic theory is simple. An employer’s fundamental breach of an employee’s contract of employment allows that employee to resign and claim that they have been “constructively” unfairly dismissed. Usually, they should not delay in doing so, however, or they may be viewed as having waived the breach and “affirmed” their contract of employment if they continue to perform their duties as an employee.

Attempting to apply these apparently straightforward concepts to the nuances of an employment relationship often throws up difficult questions in practice. For example, for what reasons, and for how long, is an employee entitled to delay and perform their contractual duties before their conduct is viewed as a decision to waive the employer’s conduct and continue with the relationship?

The answer to this question depends largely on the circumstances, but the Employment Appeal Tribunal’s recent decision in Quigley-v-University of St Andrews makes clear that there is no principle which allows an employee the right to delay significantly while they seek detailed legal advice on their position and prospects of success before an employment tribunal.

THE FACTS

Mr Quigley was a lecturer at the University of St Andrews. He had a difficult relationship with several of his colleagues. Within six months of joining the university, he resigned as chair of his department due to what he claimed was a lack of support. Subsequent applications for promotion were unsuccessful and his relationship with other academics became increasingly acrimonious.

Eventually, the university carried out an investigation into the difficulties that were occurring between members of Quigley’s department and tried to move forward without taking disciplinary action in respect of any of the parties concerned. Quigley was unsuccessful in his appeal against the findings of the initial investigation, which was concluded on March 28, 2002. A separate appeal into his complaints that the university had not promoted him was concluded on March 20, 2002. Importantly, he did not resign until May 29, 2002.

THE TRIBUNAL’S FINDINGS

Quigley subsequently brought a claim for constructive unfair dismissal, but the Employment Tribunal hearing his claim took a very negative view of his case. It found no one person ‘guilty’ and saw no other options for the university. It could not identify a breach of Quigley’s employment contract. They also found that he took more than two months to resign.

On appeal, the Employment Appeal Tribunal commented that “it can hardly be suggested that employees in the United Kingdom think that they can be forced by employers to turn up at work if they have decided that they cannot, for whatever reason, face doing so any longer”.

Instead, the Appeal Tribunal took the view that employees are generally well aware that they are not obliged to remain in employment where an employer has behaved in a manner that the employee cannot reasonably be expected to put up with. There was no right or justification for Quigley to delay in submitting his resignation while he sought legal advice.

The decision in Quigley helps to provide some certainty in an otherwise uncertain area. Employees cannot prevaricate indefinitely on legal grounds when deciding whether to resign because the right to do so, and to make a claim for unfair dismissal, is common knowledge in today’s employment arena.

Clive Day is a solicitor with Eversheds LLP