Delayed resignation

Case 3: The facts

Concerned at the employment in his workplace of undocumented workers who were not paying National Insurance, Mr El-Hoshi complained to his managers in accordance with the provisions of the Public Interest Disclosure Act 1998. As a result he was rostered to work four nights in the kitchen; this had never happened before, and he found it humiliating.

El-Hoshi went off sick and never returned to work. He later resigned, claiming that he had been subjected to detrimental treatment on the grounds of his disclosure and had been constructively dismissed.

The ruling

The issue at the EAT was whether, because he did not resign immediately, El-Hoshi accepted the employer's conduct and did not regard it as a breach of his contract. The EAT held that the delay before his resignation was a result of his being on sick leave for three months, and did not signify acceptance of the conduct.

Furthermore, El-Hoshi's resignation letter made it clear that he considered the employer's conduct to be a breach of contract, and that it was the reason for his resignation.

El-Hoshi v Pizza Express Restaurants UKEAT/0857/03