Can a disgruntled employee wait 3 months to resign and still claim constructive dismissal?

The facts

The Claimant, Mr Leaney, was a university lecturer with over 40 years’ service. A complaint was made against him by a student which he disputed. There followed a disciplinary investigation (the complaint was not upheld), a subsequent grievance and a protracted period of meetings between the university and Mr Leaney. On 29 June 2020, the University told Mr Leaney that it would not be considering the issue any further. A period of negotiation between the parties’ solicitors followed which did not lead to any resolution. Mr Leaney resigned with notice exactly 3 months later on 28 September 2020 and submitted a claim for constructive unfair dismissal. He claimed that the notification from the University on 29 June 2020 was the “last straw” amounting to a cumulative breach of the implied duty of trust and confidence.

The Employment Tribunal held that by remaining in employment for 3 months before his eventual resignation, he had affirmed the contract of employment and was therefore unable to claim constructive dismissal.

EAT decision

The EAT disagreed with the Employment Tribunal’s approach and remitted the case back to the Employment Tribunal for reconsideration. It held:

• Where the employer is in fundamental breach of contract, the employee may elect to accept the breach to bring the employment contract to an end or may treat the contract as continuing. Where the employee affirms the contract, he or she will lose the right to treat the employer’s conduct as having brought the contract to an end.
• When considering whether affirmation has taken place, Employment Tribunals should not place too much focus on the passage of time alone. All the facts and circumstances of the case should be weighed together.
• An employee with long service (and therefore likely to be in a secure position with valuable benefits) may reasonably take longer to evaluate their position without necessarily having affirmed the contract. However, this is only one factor and should be considered in the context of and on the facts of each case.
• Delay in resigning to allow for a period of negotiation before resignation is a relevant factor for the Employment Tribunal to consider as the employee may hope to give the employer the opportunity to ‘put things right’ before resigning.
• The Employment Tribunal had focused incorrectly on things that did not happen; for example, that the Claimant had not delayed his resignation because of student exams and he had not stated that he was working under protest. It should instead have focused on what had happened and what conduct might have pointed towards affirmation.

Our comment

There have been a number of recent appeal decisions on the question of affirmation in constructive dismissal claims and this EAT decision provides further useful guidance for employers. The key take-aways are that the length of time between the alleged breach/last straw event and the resignation is only one factor that the Employment Tribunal will consider and that a long wait before resignation is not necessarily fatal to the employee’s claim.

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