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Lecturer constructively dismissed, despite delay in resigning

A constructive dismissal occurs where an employee resigns in response to conduct by their employer which amounts to a ‘repudiatory’ breach of their contract of employment. The employee must resign in response to the breach so, if the employee delays in resigning, they risk affirming the contract.

In the case of Leaney v Loughborough University, the Employment Appeal Tribunal (‘EAT’) has confirmed that the passage of time between a ‘last straw’ event and an employee’s resignation does not automatically mean that an employee’s contract of employment has been affirmed, such that their claim for constructive dismissal would fail.

Background

Mr Leaney worked for Loughborough University and had done so since 1979. He had been a lecturer in the School of Engineering. In addition to his teaching duties, he was also a warden of halls of residence.

In November 2018, a student in Mr Leaney’s halls of residence had self-harmed and there were concerns about how Mr Leaney had handled the matter. A disciplinary investigation had taken place, but it was found that there was no case to answer and his manager discussed his concerns with him informally.

Mr Leaney submitted a grievance, which was partially upheld. Between January 2019 and June 2020, Mr Leaney raised concerns with his employer about the way it handled his grievance, including the University taking steps to fail to organise a grievance appeal meeting. On 29 June 2020, Mr Leaney was told that the University could not look at this issue any further.

Mr Leaney sought legal advice and entered into negotiations with the University. Mr Leaney was signed off sick on the 10 September 2020, resigned on the 28 September 2020 with notice and brought a claim for constructive dismissal.

Decision

The Employment Tribunal had dismissed Mr Leaney’s claim that he had been constructively dismissed on the basis that he had re-affirmed his contract by staying employed by the University, as he was told on 29 June 2020 that the University could not look into the issue further, but he waited until 28 September 2020 to resign.

Mr Leaney appealed this decision at the EAT. The EAT upheld Mr Leaney’s appeal, finding that the Employment Tribunal should not have focused on the passage of time but instead have looked at what conduct might or might not have amounted to an express or implied communication of affirmation.

The EAT set out the following principles:

· Tribunals should not focus too much on the passage of time when considering when an affirmation has taken place, but instead should consider the surrounding facts and circumstances too.

· Length of service is a relevant factor, as an employee with long service may take reasonably longer to consider their position. The EAT acknowledged that Mr Leaney had 40 years of service at the University and therefore it may have taken him some time to reach a decision to resign.

· A period of negotiation before resignation is relevant, negotiations could be an employee’s attempt to give the employer the opportunity to ‘put things right’ before resigning. Mr Leaney had commenced negotiations in June 2020 and had hoped the negotiations over the summer would lead to a resolution of his concerns.

Comment

It is important for employers to consider a number of factors when deciding whether an employee has affirmed their contract in a constructive dismissal case. If an employer is defending a constructive

dismissal case, the employer should look at all the circumstances to decide whether an employee has affirmed their contract of not.

That said, constructive dismissal cases are difficult for an employee to win, as the employee has to show that there has been a breach of contract which they have resigned in response to, as well as establishing that they have not affirmed their contract.