Constructive Unfair Dismissal and delays in resigning

If an employee delays before resigning in response to a fundamental breach of contract, does this mean they ‘affirm’ their contract and lose their right to claim constructive unfair dismissal?

It depends on the reason for the delay, says the EAT in Leaney v Loughborough University (available here).

Facts: The employee worked as an academic for the employer for 40 years. He raised a grievance in respect of allegations that he had mishandled dealing with a student who had self-harmed. He followed the grievance and appeal procedure between January 2019 and June 2020. However, he was unhappy with how the employer dealt with this and the outcome.

In July 2020, the employee engaged solicitors to try to resolve his concerns. After these negotiations failed, he resigned on notice in late September 2020 and brought a Tribunal claim for constructive dismissal.

Tribunal decision: The Tribunal dismissed the employee’s claim. It said he had affirmed the contract by delaying too long before resigning.

EAT decision: The EAT disagreed. It said the employee had not affirmed the contract. It is not just the length of delay that must be considered, but what the employee was doing during this time, taking account of all potentially relevant factors.

In this case, the Tribunal had failed to take sufficient account of the:

Employee’s long service: this increased the difficulty and level of stress involved in the decision to resign, which made the delay more reasonable.
Type of work the employee was carrying out between July and September: As this was the summer holidays, the employee was not performing his usual duties or doing any significant work. Further from early September, the employee was signed off sick, so was not carrying out any duties. This made it less likely the employee affirmed his contract during this time.
Employee’s attempts to resolve his concerns: The fact that the employee’s solicitors were trying to resolve his concerns during the above period made it more reasonable for him to delay his resignation.

Implications:

This is a useful reminder to employers that just because an employee delays in resigning does not mean that they cannot succeed in a constructive unfair dismissal claim. The Tribunal will take a number of factors into account, including those listed by the EAT in its above decision and also their:

Financial situation: the heavier the employee’s reliance on the job (to support either themselves or others) the more reasonable the delay.
Difficulty finding another job: the scarcer the availability of other jobs, the more reasonable the delay.
Sickness absence: Delay caused by sickness absence will be less likely to affirm the contract. The employee will not be turning up to work or actively carrying out their role during this time and their illness will no doubt impact on their decision-making ability – making delay more reasonable.
Opportunity to remedy the breach: Where the reason for the delay is (genuinely) to allow the employer the opportunity to put things right, it is more likely to be reasonable. Particularly if it is at the employer’s suggestion. However, once the employer’s response is known (either by taking positive steps to mend the breach, or failing to do so within a reasonable time-frame) the employee needs to be prompt in deciding whether to resign or affirm the contract.

Constructive Unfair Dismissal and delays in resigning

If an employee delays before resigning in response to a fundamental breach of contract, does this mean they ‘affirm’ their contract and lose their right to claim constructive unfair dismissal?

It depends on the reason for the delay, says the EAT in Leaney v Loughborough University (available here).

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