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It depends.
It depends and you must be precise and very specific about what you are doing and why.
The common law dictates that if you are resigning in response to a fundamental breach of contract by your employer you would normally resign and leave the job immediately without working your notice.
The reason for this is that if you resign and carry on working you may be affirming your contract.
In plain English affirmation means that you are signalling that the contract is continuing rather than asserting that it has been broken by the conduct of your employer.
The legal provisions around constructive dismissal do not prohibit you working your notice but if you are going to then you need to be absolutely clear that you are not affirming the contract, you are treating it as ended, but that you are prepared to work, say, two weeks to finish a project.
If you do this you must clearly state in writing that you have resigned, give the reason for it – i.e. it is a response to your employer's fundamental breach which has brought an end to the contractual relationship – but that you are working a short period for a given reason and this should not be interpreted as affirmation of the contract.
This is a high-risk strategy and you should seriously consider whether you really need to remain in the job after claiming that it has become impossible. You are saying one thing and showing another with your conduct. The Employment Tribunals or other courts can draw their own conclusions from this and you may scupper your claim.
Affirmation can be express or implied. If you are continuing to work this is consistent with your obligation to work under the contract and a tribunal can imply that you have not resigned at all despite your explanation.
The case law is unclear on this. Your safest option? Resign without notice.
You should note that pay and other contractual benefits will cease with the end of the contract and you should also note that if you are going to resign in response to a breach you must do so in a timely manner. Any delay will lead to the suggestion that you have accepted/waived the breach. Time is of the essence.
Constructive dismissal claims are never easy or simple. You might think about taking legal advice before you take the leap.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
