The Employment Appeal Tribunal (EAT) recently provided clarifications on key aspects of constructive dismissal – in particular, acceptance of the employer's breach (affirmation) and delay. The EAT ruled in Leaney v. Loughborough University that, when considering affirmation and constructive dismissal, all relevant features of the case should be carefully considered and that too much focus should not be put on the length of any delay. Rather, the key point is whether the conduct during the relevant period has the potential to amount to an express or implied communication of affirmation.

Legal background

Constructive dismissal can occur where an employee resigns due to their employer breaching their contract (e.g. the implied term of trust and confidence), such that the employee feels they cannot continue in their job. A constructive dismissal could also occur as a result of a series of small incidents which, taken collectively, lead to the employee feeling compelled to resign as opposed to there having to be one major breach.

To succeed with their claim for constructive dismissal, a claimant must prove, on the balance of probabilities, that:

• there was a breach of a contractual term of the employment agreement (the Breach);
• that Breach is sufficiently serious to justify a resignation;
• the claimant resigned in response to the Breach; and
• the claimant did not delay too long before resigning in response to the Breach.

Within the context of constructive dismissal, affirmation refers to the actions of the employee following on from the Breach. If the employee is seen to accept or affirm the Breach and the contract, they lose the right to argue that they were constructively dismissed. This can occur where an employee continues to work for the employer for a significant period after a Breach and may weaken a claimant's position that their resignation was in response to the Breach. However, as highlighted by the EAT's recent judgment, it is not just about how long an employee continues in employment following the Breach that is relevant, but also whether their conduct during that period amounts to an express or implied communication of affirmation.

Factual background

In this case, Doctor Paul Leaney (the Claimant) was employed by Loughborough University (the University). He commenced employment with the University in 1979 and held various roles ranging from university lecturer to warden of a halls of residence.

In November 2018, an incident occurred involving a student who lived in the hall of residence of which the Claimant was the warden. In response, the University conducted a disciplinary investigation into the Claimant's conduct but no formal case was found against him. The Claimant then raised a grievance against his line manager. Between January 2019 and June 2020, the Claimant raised various concerns with the University in respect of the way the University had handled his grievance-related issues. Ultimately, the Claimant raised the incident with the student with the Dean of the School of Engineering on 29 June 2020, but was informed that this was not within the scope of the Dean's remit.

The Claimant resigned from his warden role in June 2020 (to take effect at the end of December 2020) and engaged in negotiations with the University through his solicitors over the course of the University's summer holidays, between June and September 2020. He was subsequently signed off sick on 10 September 2020 when the academic year began and, on 28 September 2020, he gave notice of his resignation from the University.

The Claimant brought an unfair constructive dismissal claim alleging that the University had conducted itself in a manner that cumulatively amounted to a breach of the implied duty of trust and confidence, with the failure of the negotiations on 7 September 2020 amounting to a last straw.

The Employment Tribunal (ET) dismissed the Claimant's claim. It held that the breakdown of negotiations on 7 September 2020 could not be relied upon as a last straw and the relevant date was 29 June 2020 when the Dean informed the Claimant he could not intervene in the matter with the student. It went on to conclude that, in the absence of any indication that the Claimant was working under protest between the last straw on 29 June and his resignation on 28 September 2020, the Claimant had effectively affirmed his contract. The ET did not therefore go on to explore the issue of whether the University had fundamentally breached the terms of the contract.

The Claimant appealed on the basis that the ET was wrong to conclude that three months was an unreasonable period of delay amounting to an affirmation of his employment contract.

The EAT decision

The EAT allowed the Claimant's appeal. It found that the ET had placed too much focus on the delay between June 2020 to September 2020 (i.e. the mere passage of time), without sufficiently considering the Claimant's conduct or other relevant circumstances during the period leading up to his resignation in September.

The EAT highlighted that a delay in communicating a decision to resign in response to a breach will not in and of itself amount to affirmation. Whether a delay does amount to an implied affirmation depends upon the injured party's conduct in the course of the intervening period.

Reviewing this case, the EAT pointed out that the Claimant's long service, the summer holiday period between June and September, the ongoing negotiations and the Claimant's eventual sickness absence were not adequately considered by the ET in the context of assessing whether the contract had been affirmed by the Claimant. In particular:

• Length of service: The EAT acknowledged that the Claimant's 40 years of service meant that resigning might have been a particularly distressing decision which required detailed consideration. For example, the Claimant's resignation may have resulted in the loss of valuable benefits which he may not be able to easily replicate in an alternative role. He would also lose the stability and security he had been able to rely upon for four decades. This made the decision to resign a difficult one that should be given due regard.
• Negotiation time: The EAT also took into consideration that the Claimant had hoped that negotiations over the summer would have resolved his concerns. It noted that the Claimant had, in the course of the three months between June and September, given the University a chance to put things right, rather than simply putting off his resignation until the academic year began.
• Factual circumstances: The EAT considered that the ET had failed to give appropriate weight to practical matters when deciding whether the contract had been affirmed. For example, the Claimant was not doing any significant work over the relevant period, nor did he have contact with students while negotiations were ongoing or otherwise postpone his resignation to account for student examinations. Further, the Claimant had been absent due to sickness from 7 September until his ultimate resignation on 28 September 2020.

The EAT therefore remitted the case for reconsideration by the same ET.

Lessons for employers

This case is a useful example of circumstances in which a delay between an alleged breach and the employee's resignation may not necessarily amount to affirmation of the contract. While this is a fact-sensitive case, the EAT judgment helpfully clarifies a few key points that employers should be aware of:

• employees with long service may reasonably require more time to decide whether to resign following a breach of contract;
• it is incorrect to rely too heavily on the pure fact of delay, without sufficiently considering other relevant factors too; and
• the context of the employee's actions during the period from the alleged breach up to their resignation, including any negotiations or sickness absence, should be considered when determining if they have affirmed the contract.