Resignation and Constructive Dismissal
One of the most common claims in the Employment Tribunal is a claim of ‘constructive unfair dismissal’, whereby the employee resigns because they believe their employer has seriously breached their employment contract.
Where an employee resigns in relation to what they believe is a fundamental breach of their employment contract, if they wait too long from the date of the breach to resigning they risk losing their entitlement to claim constructive dismissal.
How important is the length of any time delay? This is what was considered in the recent case of Leaney v Loughborough University  EAT 155.
Facts of the case
The Claimant, Dr Leaney, was employed at the Respondent university since 1979, first as a research assistant but most recently as a university teacher. Alongside his teaching role, he was also a ‘warden’ in one of the university’s halls of residence.
An incident occurred involving a student in the halls of residence and concerns were raised about the approach Dr Leaney took in dealing with the matter. A disciplinary procedure was conducted, and it was found there was no formal case to answer. However, Dr Leaney raised a grievance regarding the manager’s behaviour and approach, he then was unhappy with the university’s response to the grievance and he raised an appeal which was dealt with formally.
The grievance was partly upheld, and Dr Leaney appealed the decision once again. This appeal was not taken forward by the university. During this time, which was over the university summer holidays, unsuccessful attempts were made to arrange mediation between Dr Leaney and his manager. After the last unsuccessful attempt Dr Leaney resigned and claimed constructive dismissal.
The ET at first instance rejected Dr Leaney’s claim on the basis that the gap between the date of the university’s last alleged breach of contract (held to be in June), and the date of the resignation (September) was too long. The Tribunal considered that over the 3-month period Dr Leaney had affirmed the contract by reason of the time delay. Dr Leaney appealed the ET’s decision to the EAT.
The EAT allowed Dr Leaney’s appeal. The EAT outlining the question for tribunals to start with which is “whether there was conduct during the relevant period (ie between the final straw act and the resignation) that might or might not have amounted to express or implied communication of affirmation”? The EAT found, in line with previous cases, that the passage of time in such cases is not the issue, it is the conduct or circumstances in that period that can infer affirmation. A mere delay in resignation alone would not mean affirmation of the contract.
In the EAT judgment, the Judge helpfully then set out some key principles to consider when there are delays between an alleged breach and resignation:
· The time between the last straw that prompted the resignation and the resignation itself is not determinative of affirmation.
· The employee’s conduct during that time should be assessed for evidence of express or implied affirmation.
· A range of factors should be considered including the employee’s workload (Dr Leaney in this case felt he could not resign until the summer break due to the damage it would cause to his students) and the employee’s length of service.
The EAT judgment provided a useful analysis on the relationship between time delay and affirmation in constructive dismissal claims. The question for employers remains, in simple terms, whether the employee accepted the breach and carried on working.
Affirmation need not be express and can be implied/inferred from the conduct of the employee post-breach. Mere delay on its own is not enough to show affirmation, which was the focus of the Leaney case explored.
As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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