Constructive dismissal claim fails after employee stayed five months after last straw
A case management clerk who resigned five months after the alleged final straw was found to have affirmed her contract, losing her constructive dismissal claim against Birmingham City Council.
1 min read · Last updated 18 May 2026
Key facts
- The claimant was employed as a case management clerk from 31 May 2013 until she resigned on 11 January 2018.
- The respondent conceded the claimant was disabled from 4 December 2015 due to bursitis and spinal complications.
- The claimant's discrimination claims were dismissed as out of time, with no just and equitable extension granted.
- The constructive unfair dismissal claim failed because the claimant affirmed the contract by remaining employed for five months after the alleged last straw.
- The tribunal found no fundamental breach of the implied term of trust and confidence.
Timeline
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Employment commenced
Claimant started work as a case management clerk (Grade 2) in the respondent's Legal Services Division.
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Bursitis diagnosed
Claimant's GP diagnosed bursitis and administered a steroid injection to her left shoulder.
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Climbing accident
Claimant sustained neck, back, and head injuries while climbing; she was off work for two weeks.
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Long-term sickness absence began
Claimant started a period of long-term sickness absence due to thoracic spine injury, lasting until 19 May 2016.
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Full case hearing and attendance improvement plan
A full case hearing was held; the claimant was issued an attendance improvement plan with a target of 9.25 days absence.
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Return to work
Claimant returned to work on a phased basis after long-term sickness absence.
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Home working request refused
Christopher Johnson refused the claimant's request to work from home, citing a failed trial with another employee.
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Flexible working request granted
Claimant's request to reduce hours was granted; she worked 5 hours a day with flexible start times to attend physiotherapy.
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Early court shifts introduced
John Emmins required court shifts to start at 8.45 am; the claimant said she struggled due to medication side effects.
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Occupational Health referral
John Emmins prepared an OH referral attributing the claimant's shoulder pain to the climbing accident; the claimant disputed this.
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Resignation
Claimant resigned with immediate effect, citing humiliation and discrimination.
The legal issue
The tribunal had to decide whether the claimant was constructively unfairly dismissed and whether the respondent discriminated against her due to disability, including claims of direct discrimination, discrimination arising from disability, and failure to make reasonable adjustments.
The outcome
The tribunal dismissed all claims. The disability discrimination claims were struck out or dismissed as out of time, with no just and equitable extension granted. The constructive unfair dismissal claim failed because the claimant affirmed the contract by remaining employed for five months after the alleged last straw, and the tribunal found no fundamental breach of the implied term of trust and confidence.
No compensation was awarded.
Lessons & takeaways
- If you believe your employer has fundamentally breached your contract, you should resign promptly — waiting too long can be seen as affirming the contract and losing your right to claim constructive dismissal.
- Disability discrimination claims must be brought within three months of the act complained of; the tribunal has discretion to extend time but only in exceptional circumstances.
- A single act that is not itself a breach of contract cannot be the 'last straw' if earlier acts were already accepted or affirmed.
- Keep a clear record of any acts you consider to be a breach of contract, and seek legal advice promptly if you are considering resigning.
This case highlights the importance of timing in constructive dismissal claims. The claimant, a case management clerk for Birmingham City Council, resigned in January 2018 citing a series of events she said amounted to a fundamental breach of trust and confidence. However, the tribunal found that she had already affirmed her contract by continuing to work for five months after the incident she described as the 'last straw'.
Why the claim failed
The tribunal noted that the claimant had raised grievances and continued to work after the alleged final act in August 2017. By staying until January 2018, she was deemed to have accepted the contract's continuation. The tribunal also found that the earlier acts relied upon did not, individually or collectively, amount to a fundamental breach. The disability discrimination claims were largely out of time, and the tribunal declined to extend the deadline.
What this means for similar cases
Employees considering a constructive dismissal claim should act swiftly after the alleged breach. Any delay can be interpreted as affirmation, which bars the claim. It is also crucial to bring discrimination claims within the statutory time limits, as extensions are rarely granted. This case serves as a reminder that tribunals will scrutinise the timeline closely and that patience after a dispute can be fatal to a claim.
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