Constructive dismissal and affirmation
The passage of time before an employee resigns will not necessarily by and of itself amount to the employee affirming their contract and therefore losing the right to claim unfair constructive dismissal.
Mr Leaney was a lecturer with more than 40 years’ service. A complaint was raised against him by a student who had self-harmed. Mr Leaney disputed that he’d done anything wrong. There then followed a disciplinary investigation, a grievance and various meetings between the university, Mr Leaney and solicitors. This culminated in Mr Leaney resigning on notice on 28 September 2020, relying on a communication from the university on 29 June 2020 as the ‘last straw’. He brought a claim for unfair constructive dismissal, claiming that the university had conducted itself in a manner that amounted to a cumulative breach of the implied duty of trust and confidence. A tribunal dismissed his claim. It held that, in the three months between June and his departure in September, Mr Leaney had affirmed any breach due to the prolonged period it took him to resign in response to the university’s breach. Mr Leaney appealed.
The appeal was allowed and sent back to the same tribunal to reconsider.
The starting point is where one party commits a fundamental breach, the other may accept the breach as bringing the contract to an end or may affirm the contract. A delay in communicating a decision to accept a breach will not in and of itself amount to affirmation. However, given the nature of an employment relationship, a delay may give rise to implied affirmation depending on what has happened in the intervening period, e.g. whether the employee has continued to work and receive pay. This will not necessarily be the case if the employee communicates that they are considering their position or tries to allow the employer to put right the breach before deciding what to do.
Here the tribunal had got it wrong on its approach to affirmation. It had focused on the length of the delay rather than considering Mr Leaney’s conduct. Had he either expressly or impliedly done anything to affirm his contract? Among the issues it had failed to consider were:
- Mr Leaney’s length of service. Long serving employees may logically wait longer to evaluate their position before leaving a stable and secure job (and/or lose valuable benefits).
- The three-month period covered the summer holidays during which Mr Leaney wasn’t doing any significant work.
- There were negotiations during this period in an attempt to resolve the situation. An employee may engage in negotiations to give the employer one last chance to put things right before resigning.
- Mr Leaney had been signed off sick for three weeks before resigning.
This is a useful reminder that any such decision on matters such as affirmation are for the tribunal to make taking numerous factors into account and employers should not believe they are ‘out of the woods’ with a claim just because time has elapsed.