Constructive dismissal occurs when an employee resigns in response to their employer's conduct that amounts to a repudiatory breach of contract.
The employee may "accept" the repudiation by resigning, usually without notice, and they must also do so without undue delay, or they may be held to have affirmed the contract. The Employment Appeal Tribunal (EAT) assessed in Dr Paul Leaney v. Loughborough University [2023] EAT 155 whether an employee who waited three months to resign could make a claim for constructive dismissal.
The facts
Dr Leaney, a lecturer with over 40 years of service at Loughborough University, received a complaint from a fellow student. This complaint led to a disciplinary investigation, which found that Dr Leaney was not guilty of the allegations made. Despite this outcome, Dr Leaney raised a grievance with the university because he was not happy with the process undertaken.
After many months of protracted communication with the university, on 29 June 2020, the university stated it wouldn't pursue the matter further. On 1 July 2020, Dr Leaney contacted a solicitor who continued to negotiate further with the university. On 10 September 2020, Dr Leaney was signed off sick from work as he felt increasingly anxious about engaging with students again at the start of the new academic year.
A further negotiation period occurred between the parties, but unfortunately, no resolution was reached. After these unsuccessful negotiations, Dr Leaney resigned on 28 September 2020, claiming that the university's notification on 29 June was the "last straw" in a cumulative breach of the implied duty of trust and confidence.
The Employment Tribunal ruled that Dr Leaney affirmed the contract by staying three months after the notification on 29 June 2020, thus disqualifying his constructive dismissal claim.
The Employment Appeal Tribunal's decision
The Employment Appeal Tribunal disagreed with the approach that the Employment Tribunal adopted and held that affirmation of a contract isn't solely dependent on the passage of time, and all circumstances must be considered.
In this scenario, the Employment Tribunal should have considered that:
- Long-serving employees (and therefore with access to great benefits) may reasonably need more time to evaluate their position without affirming the contract.
- Delays for negotiations are relevant, as employees may hope their employer will rectify the issues before resigning.
- The three-month period coincided with the summer holidays, during which Dr Leaney was not doing any significant work.
- Dr Leaney was off sick for the remainder of the period.
The EAT therefore held that the correct question is not the period of time that has passed, but rather what conduct during the relevant period might or might not amount to an express or implied communication of affirmation.
Lessons for employers
Determining whether an employee has affirmed their employment contract may be complex and depends on the case's specific facts. Dr. Paul Leaney v. Loughborough University [2023] EAT 155 illustrates that merely considering the time elapsed between the final incident justifying resignation and the actual resignation is insufficient.
Employers should not, therefore, assume that an employee who complains about their treatment but does not resign until sometime later will necessarily be prevented from pursuing a claim of constructive dismissal.
