Constructive dismissal claim fails after six-month delay in resigning
A finance administrator who resigned after six months of sick leave lost her constructive dismissal claim because the tribunal found she had affirmed her contract by waiting too long.
2 min read · Last updated 18 May 2026
Key facts
- Ms Elvin resigned on 2 July 2020 after being off sick since 3 January 2020.
- She had disclosed her mental health conditions (anxiety and OCD) to the respondent in August 2019.
- The respondent commissioned an occupational health report in October 2019 but did not implement its recommendations.
- On 3 January 2020, Ms Elvin was given an unfamiliar task under pressure and became distressed, leading to her absence.
- The tribunal found a fundamental breach of contract on 3 January 2020 but held that Ms Elvin affirmed the contract by delaying her resignation for six months.
- All discrimination claims were dismissed as out of time because the last act of discrimination was on 3 January 2020.
Timeline
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Started employment
Ms Elvin joined Anglia Crown Limited as a Finance and Sales Support Administrator through an agency.
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Returned after foot surgery
Ms Elvin returned to work on a fixed-term contract after having a pin inserted in her foot for Freiberg's disease.
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Started purchase ledger role
Ms Elvin started as Purchase Ledger Assistant after a further hospital admission for foot surgery.
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Absence review meeting
Ms Black arranged an absence review meeting with Ms Elvin, which led to a disciplinary hearing.
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First disciplinary hearing
Ms Elvin received a verbal warning for absence; she disclosed her mental health conditions and became distressed.
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Occupational health appointment
Ms Elvin saw an occupational health nurse, who recommended an Access to Work mentor; this was not implemented.
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Second disciplinary hearing
Ms Elvin attended a disciplinary hearing for further absence; no sanction was applied.
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Final straw incident
Ms Elvin became distressed during a stock-taking task and went home sick; she never returned to work.
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Meeting with HR
Ms Hunt met Ms Elvin off-site to discuss her return; Ms Elvin said she wanted adjustments to her workload.
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Resignation
Ms Elvin handed in her resignation letter at a meeting with Ms Hunt, citing overwork and lack of support.
The legal issue
The tribunal had to decide whether the employee was constructively dismissed and whether she had affirmed the contract by not resigning promptly, and whether her disability discrimination claims were brought within the time limit.
The outcome
The tribunal dismissed all claims.
- The employee resigned on 2 July 2020 after being off sick since 3 January 2020.
- The tribunal found a fundamental breach of contract on 3 January 2020 (the 'final straw' incident) but held that the employee affirmed the contract by continuing to engage with the employer for six months before resigning.
- All discrimination claims were dismissed as out of time because the last act of alleged discrimination was on 3 January 2020 and the claims were not presented within the three-month time limit.
- No compensation was awarded.
Lessons & takeaways
- If you believe your employer has fundamentally breached your contract, you should resign promptly—delaying can be seen as accepting the breach.
- Keep a clear record of any incidents you consider a 'final straw' and seek legal advice quickly to avoid missing time limits.
- Disability discrimination claims must be brought to an employment tribunal within three months of the last act of discrimination—there is no extension for ongoing relationships.
- Engaging in return-to-work discussions after a breach may be interpreted as affirming the contract, even if you ultimately resign.
A resignation that came too late
This case shows how crucial timing is in constructive dismissal claims. The employee, a finance and sales support administrator, had been off work with stress and anxiety since January 2020. She resigned six months later, in July 2020, citing overwork and lack of support. The tribunal agreed that her employer had fundamentally breached her contract on 3 January 2020—the day she was given an unfamiliar task under pressure and became so distressed she went home and never returned. But that was not enough to win her claim.
Why the claim failed
The tribunal found that by waiting six months to resign, and by engaging in meetings about her return to work during that period, the employee had 'affirmed' the contract. In legal terms, affirmation means you have chosen to continue with the contract despite the breach, which extinguishes your right to claim constructive dismissal. The tribunal noted that she had a meeting with HR in February 2020 where she discussed adjustments to her workload, and she did not resign until July. That delay was fatal to her claim.
What the employer could have done differently
While the employer ultimately won, the case highlights risks. The occupational health report from October 2019 recommended an Access to Work mentor, but this was not implemented. The employee had disclosed her anxiety and OCD in August 2019, but the employer did not adjust her workload. A more proactive approach to supporting her mental health might have avoided the breakdown and the subsequent claim altogether.
Why this matters for similar claims
For anyone considering a constructive dismissal claim, the key lesson is: act quickly. If you believe your employer's behaviour amounts to a fundamental breach, you should resign soon after the last incident. Any delay, especially if you continue to engage with your employer, can be seen as acceptance of the breach. Also, remember that discrimination claims have strict time limits—three months from the last act—and there is no leeway for ongoing employment relationships.
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