Painter and decorator loses constructive dismissal claim over night porter return

When a return-to-work dispute fails to meet the constructive dismissal threshold

This case shows the difficulty of winning a constructive dismissal claim based on health and safety concerns, particularly when the employee does not raise those concerns at the time of refusing to work. The claimant, a painter and decorator, had been furloughed during the pandemic. When his employer asked him to return as a night porter on just one day's notice, he refused because of childcare commitments — not because of safety fears.

Only later, in his resignation letter, did the claimant cite health and safety failings, relying on a photograph of managers not social distancing that had been taken two months earlier. The tribunal found that this did not amount to a fundamental breach of contract, and that the claimant did not have a reasonable belief of serious and imminent danger.

What the employer could have done differently

East Sussex National Ltd could have given more notice of the return to work and explored flexible options, especially given the claimant had previously expressed willingness to work subject to childcare. However, the tribunal noted that the employer's actions — removing the claimant from furlough and inviting him to a disciplinary hearing — were not a breach of contract in the circumstances.

Why this result matters

This case reinforces that constructive dismissal claims require clear evidence of a fundamental breach at the time of resignation. Employees who refuse to return to work should articulate their concerns immediately and in writing. For employers, it confirms that a reasonable instruction to return from furlough, even on short notice, is unlikely to be a breach — provided the workplace is safe and the employee's concerns are addressed.