436: EAT provides guidance on relevance of delaying resignation in constructive dismissal claims

An employee may resign and claim constructive dismissal in response to a fundamental breach of their contract of employment by their employer. However, delaying too long before resigning may mean that the employee has affirmed their contract and lost the right to make a claim. In the recent case of Leaney v Loughborough University, the Employment Appeal Tribunal (EAT) has confirmed that it is not just the fact of delay that is relevant. All the circumstances, including the employee’s conduct, must be considered when assessing whether that delay amounts to affirmation.

Dr Leaney had worked for Loughborough University for 40 years as a lecturer and a warden in a hall of residence. He raised a grievance about the way the University had handled an incident connected with his warden role which was only partially upheld. He then pursued an appeal against the outcome of his grievance. The University failed to organise the appeal and urged him to draw a line under the matter. However, he persisted and eventually contacted solicitors who conducted negotiations with the University. No resolution could be reached, and Dr Leaney resigned, claiming that the failure of the negotiations was the last straw. He subsequently brought a claim for constructive dismissal, alleging that the University had conducted itself in a manner that amounted to a cumulative breach of the implied duty of trust and confidence.

The Employment Tribunal rejected Dr Leaney’s claim because it found that he had delayed his resignation for two months from the date when it had become clear that the University was not going to resolve his grievance. The Tribunal held that he had affirmed his contract of employment in this intervening period.

The EAT has now allowed Dr Leaney’s appeal, ruling that the Tribunal had relied too heavily on the fact of delay and had failed to examine all other potentially relevant circumstances. For example, the Tribunal had given insufficient consideration to the fact that the period of delay coincided with the University’s summer vacation; negotiations had taken place throughout that summer; and resigning after 40 years’ service could be a particularly difficult decision for Dr Leaney to weigh up. The claim was remitted to the same Tribunal so that these factors could be properly considered in assessing whether Dr Leaney had affirmed his contract prior to resigning.

This case highlights that the outcome of constructive dismissal cases will always depend on the individual facts and circumstances. The EAT has helpfully confirmed that a delay in resigning will not in itself give rise to affirmation, particularly where the employee has indicated that they are considering their position or giving the employer a chance to resolve the breach. The correct approach is to assess whether the employee’s conduct during the relevant period amounts to express or implied affirmation.