Constructive dismissal claim fails: resignation after conditional job offer was not a breach of trust
A Transport Team Manager with 15 years' service resigned after a series of disputes over performance grading and rota changes. The tribunal dismissed his constructive unfair dismissal claim, finding he had affirmed the contract by continuing to work after deciding to leave.
1 min read · Last updated 18 May 2026
Case details
- #performance-review
- #rota-change
- #grievance
- #alternative-role
- #affirmation
Key facts
- The claimant was employed from 1 November 2006 until his resignation on 12 August 2022.
- The claimant's performance grading was changed from Exceeding to Achieving after a calibration panel review.
- The respondent proposed changes to shift patterns but never implemented them without consultation.
- A collective grievance was raised but informally resolved through mediation and assurances.
- The claimant wanted a driver role on NTA terms but no such vacancy existed matching his requirements.
- The claimant resigned only after receiving a conditional offer of alternative employment.
Timeline
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Employment commenced
Claimant started as HGV class I driver at Plymouth depot.
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Promoted to Transport Team Leader
Claimant was promoted to Transport Team Leader.
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Line manager left
Mr McDonnell left the respondent's employment.
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Performance review meeting
Mr Whitehouse awarded Achieving grade after calibration panel discussion.
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Email about rota changes
Mr Whitehouse emailed seeking feedback on proposed rota changes.
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Collective grievance raised
Claimant and colleagues raised formal collective grievance about rota changes.
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Mediation meeting
Respondent held mediation; assured no changes without consultation.
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End of year review
Mr Whitehouse confirmed Achieving grade; claimant objected.
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Decision to resign
Claimant decided to resign after NTA driver appointment but continued working.
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Resignation letter
Claimant resigned after receiving conditional offer of alternative employment.
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Employment terminated
Claimant's employment ended by agreement.
The legal issue
Whether the employer's actions—changing a performance grade, proposing rota changes without consultation, and failing to offer an alternative role—amounted to a fundamental breach of contract that justified the employee resigning and claiming constructive dismissal.
The outcome
The Employment Tribunal dismissed the claim for constructive unfair dismissal.
The key reasons were:
- The performance grading change and proposed rota changes were not breaches of contract; the employer had a reasonable process and the rota changes were never implemented.
- The claimant decided to resign in January 2022 but continued working until August 2022, which amounted to affirming the contract and waiving any breach.
- The respondent's failure to offer a driver role on NTA terms did not breach trust and confidence because no suitable vacancy existed.
No compensation was awarded as the claim failed.
Lessons & takeaways
- If you decide to resign over a dispute, do so promptly—continuing to work for months can be seen as accepting the situation and losing the right to claim constructive dismissal.
- A single performance review grade change, unless arbitrary or malicious, is unlikely to be a fundamental breach of contract.
- Employers can propose changes to working patterns without breaching trust, as long as they consult and do not implement them unilaterally.
- Resigning only after securing another job may weaken a constructive dismissal claim, as it can suggest the resignation was motivated by the new opportunity rather than the employer's conduct.
When does a resignation become a dismissal?
This case shows the importance of timing in constructive dismissal claims. The claimant, a long-serving Transport Team Manager, was unhappy with a series of events: his performance grade was changed from 'Exceeding' to 'Achieving' after a calibration panel, his line manager proposed rota changes without full consultation, and he was not offered an alternative driver role he wanted. However, the tribunal found that none of these actions, individually or together, amounted to a fundamental breach of the implied term of trust and confidence.
Crucially, the claimant had decided to resign in January 2022 but continued working until August 2022, only resigning after receiving a conditional offer of alternative employment. The tribunal held that this delay amounted to 'affirmation'—by staying on, he had accepted the employer's conduct and lost the right to claim constructive dismissal.
What the employer did right
The Co-operative Group had processes in place that protected it. The performance grading was not a unilateral decision but the result of a calibration panel. The proposed rota changes were never implemented without consultation, and a collective grievance was resolved through mediation. When the claimant asked for a driver role, the employer genuinely had no suitable vacancy that matched his requirements. These actions showed the employer was acting reasonably, even if the claimant was dissatisfied.
Key takeaway for employees
If you believe your employer has fundamentally breached your contract, you must resign promptly in response to that breach—or risk losing your right to claim constructive dismissal. Continuing to work while looking for another job can be interpreted as accepting the situation. This case also highlights that not every management decision that upsets an employee will be a breach of contract; the test is whether the employer's conduct is so serious that it destroys the relationship of trust and confidence.
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