Constructive Dismissal claim allowed

A recent case has made it clear that a delay in raising an issue is not a bar to a claim of constructive dismissal. An EAT ruling found that although the claimants put up the situation for several years this was not a bar to their claim.

The workers were young migrants working as waitresses and were under financial pressure with no certainty of continued employment. An ‘equilibrium’ had been reached in the workplace while there was another more senior female member of staff but when she left the claimants felt they had to resign. The EAT agreed that simply because they had tolerated the behaviour leading to the claim for several years, that did not mean it was wanted and a claim for constructive dismissal was upheld.

In the past tribunals have generally been reluctant to accept a delay of more than a few weeks between the alleged behaviour and resigning, in order to subsequently allow a claim of constructive dismissal. This case raises some doubts about the timescale, but in principle employees should always act quickly in response to an alleged breach of contract to avoid re-affirming their contract. However, the issues of youth, migrant status and financial circumstances may be relevant in other cases, especially in the current financial climate when it is difficult to find alternative work.