Did an employee undermine his claim for constructive dismissal when he took over three months to resign in response?
The recent Employment Appeal Tribunal (EAT) decision of Leaney v Loughborough University gives useful guidance on what an Employment Tribunal (ET) should be examining when considering delays in resignation in claims of constructive unfair dismissal.
Facts
Mr Leaney (L) had worked for Loughborough University (the University) since 1979 as a teacher and warden in the halls of residence. A student self-harmed in November 2018 and the University considered a complaint raised about concerns of L’s handling of that incident. L resigned as warden in June 2019, remaining as a teacher.
Between 2018 and early 2020 L raised concerns to the University about its treatment of him arising from the self-harm incident. Although it partially upheld his grievance about the matter, the University failed to arrange a grievance appeal hearing, advising him (29 June 2020) there was no more it could do regarding the incident.
On 1 July 2020 L instructed a solicitor and negotiations continued between the University and L’s legal representatives until early September 2020 but without any resolution being achieved before the new academic year. As L was anxious about interacting with students, he was signed off work with stress 10 to 28 September 2020, whereupon he then resigned from his teaching role.
L brought a claim of constructive unfair dismissal to the ET, on the basis his resignation was in response to the University’s cumulative breach of the implied terms of trust and confidence, the ‘final straw’ being the University’s notification to him that there was nothing more it could do regarding the self-harm incident. It was clear to L the University was not going to help him from that date.
The ET dismissed the claim as L had continued to work for three months after the ‘final straw’ incident, had not indicated he was continuing to work under protest and the University had not misled L so as to cause him to delay in resigning. It found L had affirmed his employment contract.
Law
To establish a constructive unfair dismissal there has to be an examination of whether the employer has committed what is known as a fundamental repudiatory breach of contract, i.e. their conduct has been so serious as to bring the contract to an end. This can be one-off conduct, or a series of conducts over time ending with a ‘final straw’ incident. If there has been such a breach of contract, that is a basis for a constructive unfair dismissal claim.
Even if there has been a fundamental breach by the employer the employee can choose to treat the contract as continuing, otherwise known as affirming the contract. If they do so, the two move on from the breach and their contract continues.
Once affirmed it is not possible to rely on the previous breach to treat the contract as at an end though. Affirmation can be express or can be implied and inferred from the actions of the employee following the repudiatory breach. Delay on its own is not enough to demonstrate an affirmation, but is often relied on by employers as a key factor.
Decision
The EAT confirmed that affirmation can be implied by an employee’s actions, but that passage of time prior to resignation is not the only or even most important factor when considering whether a contract has been affirmed. All of the conduct of the parties during the period between breach and resignation must be taken into account. The EAT found the Tribunal should, in this case, have given greater consideration to the following factors:
• The period was during the summer holidays, at which time L was not doing any significant work. The EAT felt the ET had focused erroneously on an inference L was doing some form of work over the holidays rather than examine what work activities the employee was actually undertaking (which are distinct and different for a teacher during the summer vacation).
• Negotiations were ongoing during the three-month period, with attempts being made to resolve L’s concerns. Even though L may have continued to draw pay during such a period of negotiation (so leading to a suggestion he was not working ‘under protest’), some delay in resigning to allow things to be put right was relevant to considering the issue of affirmation.
• L was then away on sick leave for the remainder of this period, following the conclusion of negotiations. The EAT agreed the ET is not bound to find that in every case where an employee is off sick they cannot affirm their contract, but such absence needed to be considered in the overall context of whether there had been affirmation.
• L’s general length of service (and associated benefits built up over time in a stable and secure job) was relevant. Ending a long career and facing uncertainty with another employer, means that such employees considering leaving may reasonably take longer to consider resigning without being considered as affirming the employment contract.
The matter was remitted back to the same tribunal by the EAT, for fresh consideration on the question of whether there had been affirmation.
Comment
Katherine Irvine, Associate in our Employment team comments:
“It has always been very difficult for an employee to prove their employer’s conduct was sufficient to amount to a repudiatory breach of contract so as to form the basis of a constructive dismissal claim. The employee’s own actions following the a breach have always had to be carefully examined to ascertain whether they have “affirmed” the contract, be that implied or express.
“This decision acts as an important reminder to employers that, if arguing a breach by them has been accepted by an employee, delay in resignation, from the date of the breach, may not prove fatal to the success of the claim and many other factors come into play.
“All relevant circumstances around the breach and any resulting resignation by the employee will be scrutinised. This will include, as above, whether the employee was conducting any significant work for the employer (including any sickness absence and holiday periods), whether the employee was trying to resolve the dispute and avoid the extreme of resigning and whether giving up built up security of employment can reasonably result in hesitation.
“As such employers should not assume that a delay in an employee resigning will put them on safe footing when defending an employee’s claim for constructive dismissal. Collating and recording as much evidence as possible about the employee’s actual conduct over that period will be vital.”
