MOrsel: Letting bygones be bygones:

(in)decisive action in constructive dismissal claims

Jersey's Employment and Discrimination Tribunal has rejected a claim for constructive unfair dismissal on the basis that the Claimant "affirmed the contract" by her actions.

Described by one previous judge as "the legal embodiment of 'letting bygones be bygones'", affirmation is where a party who has suffered a fundamental breach of contract indicates by their behaviour that the breach is waived. The effect is that the employee loses the right to claim constructive dismissal.

In Leite -v- Jason's Limited, the Claimant was a hair stylist who raised a grievance about a workplace incident. The employer's outburst on receiving the grievance was found to be a fundamental breach of contract. But as the Claimant waited for another month until resigning, working as usual for some of this time, the Tribunal found she had affirmed the contract and the constructive dismissal claim failed.

For employers, this case is a good prompt to critically examine the circumstances and timing of any claim in which constructive dismissal is alleged, and will serve as a useful precedent where an employee has failed to act decisively on the underlying breach of contract.