HGV driver resigned too soon over delayed pay: constructive dismissal claim fails
An HGV driver who resigned after a short delay in payment for three days' work lost his constructive unfair dismissal claim. The tribunal found he acted prematurely before the employer's conduct became repudiatory.
1 min read · Last updated 19 May 2026
Case details
- #non-payment-of-wages
- #incorrect-sick-coding
- #resignation
- #salary-vs-hourly
- #nightshift-premium
Key facts
- The claimant was employed as an HGV tramper driver on a salary of £800 per week.
- On 26, 27 December 2022 and 2 January 2023, the claimant was unable to work because his vehicle was being repaired, but was incorrectly recorded as sick.
- The respondent agreed to pay the claimant for those three days at a meeting on 31 January 2023, but payment was not made immediately.
- The claimant resigned on 27 January 2023, withdrew his resignation after the meeting, then resigned again on 21 February 2023.
- The claimant's claim for a nightshift premium of £154 was dismissed as he was a salaried employee and no variation was proven.
- The tribunal found the claimant resigned prematurely before the respondent's failure to pay became persistent or repudiatory.
Timeline
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Employment started
Claimant began employment as an HGV Class 1 driver.
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Second contract signed
Claimant signed a contract moving to a salary of £800 per week as an HGV Tramper.
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Vehicle off road
Claimant's vehicle was being repaired; he was unable to work on 26 and 27 December 2022 and 2 January 2023, but was recorded as sick.
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First resignation
Claimant resigned by email citing repudiatory breach due to non-payment and incorrect sick coding.
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Meeting with respondent
Claimant met with HR and was assured payment for the three days would be made immediately; he withdrew his resignation.
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Follow-up meeting
Claimant chased payment; HR said she would sort it that day but did not update him.
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Second resignation
Claimant resigned again, as payment had still not been received and he had no confirmation it would be in the February payroll.
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Payment received
Respondent paid the £480 for the three days in arrears.
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Tribunal hearing
Substantive hearing took place before Employment Judge Broughton.
The legal issue
The tribunal had to decide whether a short delay in paying wages for three days, where the employer had agreed to pay and was in the process of arranging payment, amounted to a repudiatory breach of contract entitling the employee to resign and claim constructive unfair dismissal.
The outcome
The tribunal dismissed the claim for constructive unfair dismissal.
The key reason was that the employer's failure to pay for three days (26, 27 December 2022 and 2 January 2023) was not a repudiatory breach at the time the claimant resigned on 21 February 2023. The employer had agreed to pay at a meeting on 31 January 2023 and was in the process of arranging payment. The claimant resigned before the delay became persistent or fundamental.
No compensation was awarded as the claim failed. The claimant's other claims for unpaid wages were either paid or withdrawn, except for a nightshift premium claim which was dismissed because he was a salaried employee with no contractual entitlement to a nightshift rate.
Lessons & takeaways
- If you are considering resigning over a breach of contract, wait to see if the breach is fundamental and persistent — resigning too early can destroy a constructive dismissal claim.
- A single failure to pay wages on time is unlikely to be a repudiatory breach unless the employer shows a clear intention not to pay or the delay is prolonged.
- Keep a clear record of promises made by your employer and any deadlines they miss — this helps show whether the breach became repudiatory.
- If you are a salaried employee, check your contract carefully before claiming additional payments like nightshift premiums — without a contractual term, such claims are unlikely to succeed.
When a delay in pay is not enough to resign
This case shows the importance of timing in constructive dismissal claims. The claimant, an HGV driver with five years' service, resigned after his employer failed to pay him for three days when his vehicle was being repaired. The employer had agreed to pay, but the payment was not made immediately. The tribunal found that while the employer was in breach of contract, the breach was not sufficiently serious at the time of resignation to justify leaving and claiming constructive dismissal.
The claimant resigned on 21 February 2023, but the employer eventually paid the £480 on 28 April 2023. The tribunal noted that the employer had taken steps to rectify the situation, and the delay was not evidence of an intention to repudiate the contract. The claimant acted too soon.
What the employer could have done differently
The employer could have avoided the dispute entirely by paying promptly after the meeting on 31 January 2023. The HR manager assured the claimant payment would be made immediately, but it took nearly three months. While the delay was not repudiatory, it caused unnecessary friction and led to a tribunal claim. Employers should ensure that promises to pay are followed through without delay.
Why this result matters
For employees, this case is a reminder that constructive dismissal is a high bar. A single breach, even a failure to pay wages, may not be enough if the employer is actively trying to resolve the issue. Waiting to see if the breach becomes persistent or fundamental is crucial. For employers, the case underscores that even a short delay in payment can trigger a claim, but if the employer acts in good faith, the claim may fail.
The tribunal also dismissed the claimant's claim for a nightshift premium, as his contract did not provide for one. This highlights the importance of checking your contract before claiming additional payments.
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