Food service coach loses constructive dismissal claim after working 20 months after alleged incidents
A food service coach who resigned citing racist comments and harassment lost her constructive dismissal and discrimination claims after the tribunal found she had affirmed her contract by continuing to work for 20 months.
1 min read · Last updated 18 May 2026
Case details
- #constructive-dismissal
- #race-discrimination
- #harassment
- #food-service-coach
- #alleged-racist-comments
- #plastic-knife-incident
- #affirmation-of-contract
Key facts
- The claimant worked as a Food Service Coach from 2 January 2018 until her resignation on 26 August 2021.
- The tribunal found that six factual allegations occurred, including Chris calling the claimant two-faced and shouting, a comment about Asian friends and aftershave, Ann Gough calling the claimant a bitch, a plastic knife incident causing a scratch, and Julie asking about the claimant's other job.
- The tribunal rejected the remaining allegations, including that Rhys Freemire made racist comments about Asians not showering, mocked her accent, or said she came to the UK for a passport.
- The claimant resigned on medical advice due to work-related stress, but the tribunal found she did not resign in response to any fundamental breach of contract.
- The tribunal found that even if there were breaches, the claimant affirmed the contract by continuing to work for 20 months after the last incident and by raising a query about breaks in March 2021.
- All claims of direct race discrimination, harassment, constructive unfair dismissal, and notice pay were dismissed.
Timeline
-
Employment started
Claimant began work as a Food Service Coach at Activate Learning.
-
First complaints
Claimant emailed Darren Blanks about issues with Chris, including being called two-faced.
-
Shouting incident
Chris shouted at the claimant, causing her to leave work in tears. Rhys Freemire was not present.
-
Shower comment
Rhys Freemire mentioned to another staff member that his Asian friends used aftershave when they hadn't showered. The tribunal found this was not directed at the claimant.
-
Bitch comment
Ann Gough called the claimant a bitch in front of customers.
-
Plastic knife incident
Rhys Freemire was messing about with a plastic knife which made contact with the claimant's face, causing a scratch. The tribunal found no deliberate intent.
-
Julie's questions
Julie from HR asked the claimant if everyone was nice to her at her other job. The tribunal found this was innocuous small talk.
-
Meeting with HR
Claimant met with Gaelle Distel of HR; she was offered Occupational Health referral but declined.
-
Resignation
Claimant resigned with immediate effect on medical advice due to work-related stress.
-
Final hearing began
Seven-day hearing at Reading Employment Tribunal.
The legal issue
The tribunal had to decide whether the claimant was constructively unfairly dismissed, subjected to direct race discrimination or harassment related to race, and whether she was entitled to notice pay.
The outcome
The tribunal dismissed all claims, including constructive unfair dismissal, direct race discrimination, harassment related to race, and notice pay.
The key reason was that the claimant had affirmed her contract by continuing to work for 20 months after the last alleged incident and by engaging with HR about breaks in March 2021. The tribunal also rejected several allegations, including that a colleague made racist comments about Asians not showering or mocked her accent.
No compensation was awarded as all claims failed.
Lessons & takeaways
- If you experience a fundamental breach of contract, you must resign promptly or you risk being found to have affirmed the contract.
- Continuing to work for a long period after an alleged incident can undermine a constructive dismissal claim.
- Tribunals will scrutinise the timing of allegations and whether you raised concerns at the time.
- Making a complaint about working conditions (like breaks) can be seen as affirming the contract, not rejecting it.
When is a resignation not a constructive dismissal?
This case shows the importance of timing in constructive dismissal claims. The claimant, a food service coach with nearly four years' service, resigned on medical advice citing work-related stress. She alleged a series of incidents including racist comments, being called a bitch, and a plastic knife that scratched her face.
However, the tribunal found that even if some of these incidents occurred, the claimant had affirmed her contract by continuing to work for 20 months after the last incident. She also raised a query about breaks in March 2021, which the tribunal saw as engaging with the contract rather than rejecting it.
What the employer did right
Activate Learning successfully argued that the claimant had not resigned in response to a fundamental breach. The tribunal noted that the claimant did not leave soon after the alleged incidents, and some key allegations were rejected, including claims that a colleague made racist comments about Asians not showering or mocked her accent.
Key takeaway for employees
If you believe your employer has fundamentally breached your contract, you must act promptly. Continuing to work for months or years after an incident can be seen as accepting the situation. This case also highlights the importance of raising grievances at the time, rather than relying on historical events to justify a later resignation.
Similar cases
Sonographer forced to clean and threatened with deportation: race discrimination upheld
A black African sonographer was racially harassed and discriminated against after being required to perform cleaning duties and threatened with deportation. The tribunal awarded £33,611.12.
Social worker's race discrimination claim over 'aggressive' stereotype dismissed
A black social worker with 15 years' service lost her claims of race discrimination and constructive dismissal after an altercation with a white colleague. The tribunal found no evidence of stereotyping or unfair treatment.
Black psychiatric nurse passed over for dual diagnosis lead role: race and sex discrimination upheld
A Black African community psychiatric nurse with 15 years' service was found to have been discriminated against when two white female colleagues were appointed to a specialist lead role he was qualified for. The tribunal upheld his claims of direct race and sex discrimination and harassment.
Registered mental health nurse loses race discrimination claims against Cygnet
A registered mental health nurse who alleged race discrimination and harassment by Cygnet NW Limited has had all his claims dismissed by the Sheffield Employment Tribunal.