An employee can resign if you breach the contract of employment and make a constructive dismissal claim. A breach does not have to be one event.
It can be a series of events, with the employee resigning in response to one event which is seen as a ‘final straw’.
In Pets at Home v McKenzie  the employee was an Assistant Manager. When she was pregnant she applied for promotion to Deputy Manager but was unsuccessful. Whilst she was on maternity leave another opportunity for promotion arose. She applied but again she was unsuccessful. Some time later she heard that the other Assistant Manager had been promoted to Deputy Manager (this was actually untrue, he had passed an assessment centre but had not actually been promoted). She resigned, claiming constructive dismissal and arguing the other Assistant Manager’s promotion was ‘the final straw’.
Her claim was unsuccessful. The alleged breach of contract was the decision not to promote her to Deputy Manager. Nearly a year had passed since that had occurred, and therefore she was not able to make a constructive dismissal claim relying on that alleged breach. Hearing about the Assistant Manager supposedly being promoted was not a breach of contract and therefore could not be classed as a final straw.
- A ‘final straw’ does not have to amount to a repudiatory breach on its own. However, it must be sufficiently serious to be part of a pattern of behaviour that can be seen as a breach of contract. So, if an employee resigns and claims constructive dismissal question whether there has been a breach.
- If you are at all unsure if an employee might have a potential claim of constructive dismissal contact us for advice.
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