The facts

Mr Leaney had worked for Loughborough University since 1979 and was a member of its School of Engineering. In addition to his teaching duties, he was a warden of halls of residence. In November 2018, a student who lived in "his" hall of residence self-harmed. Concerns were raised about how Mr Leaney handled the matter and, although a disciplinary investigation concluded that there was no formal case to answer, his manager wanted to discuss the concerns with him informally.

Mr Leaney submitted a grievance and, when it was only partially upheld, an internal appeal. In June 2019, following the University’s failure to take steps to organise the grievance appeal, Mr Leaney resigned from his position as warden with effect from the end of December. The University’s HR Director accepted his resignation, noting that there had been concerns for some time about his approach to the warden role.

In the first half of 2020, there were further communications between Mr Leaney and the University, with the University encouraging him to draw a line under the matter.

On 29 June 2020, Mr Leaney raised the matter involving the student with the Dean of the School of Engineering, but was told this was not something that was within the Dean's remit.

On 1 July 2020, Mr Leaney contacted a solicitor, who then conducted negotiations with the University that ended without any resolution in early September.

On 10 September 2020 Mr Leaney was signed off sick from work as he felt increasingly anxious about engaging with students again at the start of the new academic year.

On 28 September 2020, he gave notice of his resignation. He brought an employment tribunal claim for unfair 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 tribunal dismissed Mr Leaney's claim.

The tribunal found that the last incident that could potentially be relied on as a last straw was not the end of the negotiations on 7 September 2020, as Mr Leaney contended, but 29 June 2020, when the Dean told him that there was nothing he could do about the matter involving the student.

The tribunal accepted that students would have been adversely impacted if Mr Leaney had resigned before June 2020, but not after this when the students were then on summer vacation. Furthermore, there was no evidence that during the negotiations the University misled Mr Leaney causing him to postpone his resignation, he was in receipt of competent legal advice, and he did not indicate that he was working under protest from 29 June 2020. The tribunal therefore concluded that Mr Leaney had not been constructively dismissed because, in the nearly three months between the last straw on 29 June 2020 and his resignation, he had affirmed his contract of employment. Given this finding, it was not necessary for the tribunal to determine whether the University was in fundamental breach of contract.

Mr Leaney appealed successfully to the EAT. In remitting the case to the same tribunal the EAT set out the following principles:

• where one party is in fundamental breach of contract, the injured party may elect to accept the breach to bring the employment contract to an end or treat the contract as continuing.
• where the injured party affirms the contract, he or she will lose the right thereafter to treat the other party’s conduct as having brought the contract to an end.
• affirmation may be expressly communicated or may be implied from conduct. Mere delay in communicating a decision to accept the breach will not, in the absence of something amounting to express or implied affirmation, amount in itself to affirmation.
• given the ongoing and dynamic nature of the employment relationship, a prolonged or significant delay may give rise to an implied affirmation because of what occurred during that period.
• where the injured party is the employee, the proactive carrying out of duties or the acceptance of significant performance by the employer by way of payment of wages are liable to be treated as evidence of implied affirmation. However, that will not necessarily be the case if the injured party communicates that he or she is considering his or her position or makes attempts to seek to allow the other party some opportunity to put right the breach before deciding what to do.

In applying these principles the EAT found that the tribunal should not have focused solely on whether the passage of time gave rise to affirmation but on what conduct there had been during the relevant period that might or might not have amounted to an express or implied communication of affirmation. In particular, the tribunal had failed to consider, or give insufficient attention to the following factors:

• that the period coincided with the summer holidays during which, it was submitted, Mr Leaney was not doing any significant work;
• that there were negotiations for much of this period during which there was some attempt at resolution of Mr Leaney’s concerns;
• that Mr Leaney was then off sick for the remainder of the period;
• his very long length of service. The EAT accepted that the authorities broadly made the point that an employee with long service might reasonably need longer to make up his or her mind; and
• the practical implications of the decision whether or not to resign for the particular employee, such as whether he or she would be leaving a secure and stable job or lose valuable benefits, either or both of which might be difficult to replace or replicate. Although the tribunal had considered the fact that Mr Leaney had worked for the University for some 40 years, it had not gone on to consider the particular circumstantial factors arising from that.

What does this mean for employers?

Whether an employee has affirmed their contract of employment will always be fact specific, and is complex. This case shows that simply considering the length of time between the last straw entitling an employee to resign and their resignation will not be sufficient. Constructive dismissal claims are hard for employees to win . As well as showing they have not affirmed the contract they have to prove the breach of contract and show they have resigned in response to it.

Dr Paul Leaney -v- Loughborough University [2023] EAT 155