Hotel night worker's constructive dismissal claim struck out after delay in resigning
A tribunal struck out a constructive unfair dismissal claim from a night team member who waited 2.5 months after the last alleged breach before resigning, finding he had affirmed the contract.
2 min read · Last updated 18 May 2026
Case details
- #constructive-dismissal
- #affirmation
- #delay-in-resignation
- #holiday-pay-vs-ssp
- #litigant-in-person
Key facts
- The claimant was employed as a night team member from 4 January 2016 until he resigned on 17 June 2024.
- He brought a claim for constructive unfair dismissal on 16 October 2024.
- The claimant alleged multiple breaches of contract, including health and safety issues, lack of career progression, and a failure to pay statutory sick pay.
- The last alleged breach was in March 2024, but the claimant resigned in June 2024, a delay of 2.5 months.
- The claimant told the tribunal that he went to resign and then noticed the sick pay issue, not the other way around.
- The tribunal found that the claimant had no reasonable prospect of establishing that he resigned in response to a fundamental breach.
Timeline
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Employment started
Claimant began working as a night team member at the respondent's hotel in Southwark.
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Last alleged breach
Claimant alleges he was paid holiday pay instead of statutory sick pay, which he considered a breach of contract.
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Resignation
Claimant resigned from his employment, effective 17 June 2024.
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Claim presented
Claimant presented a claim for constructive unfair dismissal.
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First preliminary hearing
A preliminary hearing was held to case manage the claim and agree a list of issues.
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Claimant's further particulars
Claimant sent a letter listing nine headings of alleged breaches.
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Amended grounds of resistance
Respondent filed amended grounds of resistance.
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Strike-out application
Respondent applied to strike out the claim or for a deposit order.
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Second preliminary hearing and judgment
The tribunal heard the strike-out application and struck out the claim as having no reasonable prospects of success.
The legal issue
The tribunal had to decide whether the claimant's claim for constructive unfair dismissal had reasonable prospects of success, specifically whether the alleged breaches were fundamental, whether the claimant resigned in response to them, and whether he affirmed the contract by delaying his resignation.
The outcome
The tribunal struck out the claim for constructive unfair dismissal under rule 38 as having no reasonable prospects of success.
Key reasons:
- The claimant resigned 2.5 months after the last alleged breach (March 2024), which the tribunal found amounted to affirming the contract.
- The claimant admitted he decided to resign first and then noticed the sick pay issue, not the other way around.
- No compensation was awarded as the claim was struck out.
Lessons & takeaways
- If you believe your employer has fundamentally breached your contract, you must resign promptly or you risk being found to have affirmed the contract and lost the right to claim constructive dismissal.
- Constructive dismissal claims require you to show that you resigned in response to a fundamental breach – not that you decided to leave for other reasons and then looked for a breach.
- A delay of even a few months between the last alleged breach and your resignation can be fatal to a constructive dismissal claim, especially if you continued working without protest.
- If you are bringing a claim as a litigant in person, ensure your claim form clearly sets out all legal claims (e.g., discrimination) – a vague reference in later correspondence may not be enough.
A delay that cost the case
This case shows how crucial timing is in constructive dismissal claims. The night team member had worked at the hotel for over eight years when he resigned in June 2024. He alleged a series of breaches going back years, including health and safety issues, lack of career progression, and a failure to pay statutory sick pay. But the last alleged breach occurred in March 2024 – and he did not resign until June.
Why the claim failed
The tribunal focused on the gap between the last breach and the resignation. The claimant told the tribunal that he had already decided to resign and then noticed the sick pay issue, not the other way around. That sequence was fatal: constructive dismissal requires the employee to resign because of a fundamental breach. The tribunal also found that by continuing to work for 2.5 months after the March incident, the claimant had affirmed the contract – meaning he accepted the breach and lost the right to claim.
What the employer could have done differently
Whitbread Group PLC applied to strike out the claim early, and the tribunal agreed. The employer's solicitor successfully argued that the alleged breaches – even taken at their highest – did not amount to a fundamental breach, and that the delay showed affirmation. For employers, this case is a reminder that early intervention and clear documentation of the timeline can help defeat weak constructive dismissal claims.
What this means for similar claims
For employees, the lesson is simple: if you believe your employer has fundamentally broken your contract, you must act quickly. Any delay in resigning – especially if you continue to work without complaint – can be seen as accepting the breach. The tribunal also noted that the claimant's claim form did not mention discrimination, and a later reference in correspondence was not enough to add a new claim. This highlights the importance of getting legal advice early and setting out all claims clearly from the start.
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