A recent decision by the Employment Appeal Tribunal has received media attention when Dr Leaney, a teacher and a warden at Loughborough University, resigned from his job in order to bring a constructive unfair dismissal claim. This claim was dismissed and subsequently appealed. This has highlighted the importance of employees considering time limits when making a claim to have a better chance at success.

A constructive unfair dismissal claim can be brought where an employee feels they have no choice but to resign because of something their employer has done, for example, their employer has seriously breached their employment contract. There are time limits involved for making such a claim. There is a risk that if substantive time passes from the alleged ‘breach’ or the ‘last straw’ event in a series of breaches to the employee’s resignation, the claimant can be found to have affirmed their contract by continuing to work. They could therefore lose their opportunity to argue that they were constructively dismissed. 

Facts

Dr Leaney had worked for Loughborough University with an unblemished employment record since 1979. In 2018, one of the students who resided in the flats Dr Leaney was the warden, self-harmed and was taken to hospital for her injuries. Subsequently, Mr Leaney resigned from this role as warden.

The Tribunal found that Dr Leaney had a genuine belief that he had behaved properly and had acted in the students’ best interests at all times. However, following the incident, the University raised concerns with how Dr Leaney had handled it. A report by the University Health Centre and aided by the students involved, detailed that during a meeting with Dr Leaney, they were told [they] needed to apologise to the whole flat for the “worry [they] caused them” and he told them [they] were “selfish”. Other students were all encouraged to tell the student how [their] self-harm had made them feel. Therefore, an investigation to substantiate these remarks followed.

Until early 2020, Dr Leaney repeatedly raised concerns with the University concerning the incident itself and how he had been consequently treated. Dr Leaney then raised a grievance which was partially upheld, but no grievance appeal hearing was ever arranged. Instead, he was pushed to draw a line under matters and withdraw his appeal. The Tribunal heard a series of problems with how the process was conducted, how the investigation was carried out and the communication made with Dr Leaney. The Tribunal found that the University had in fact stopped any progression of his appeal. Dr Leaney was therefore signed off with sick with stress for the first time in 40 years, furthered by the multiple online articles written about the situation by the student.

On 29 June 2020, Dr Leaney raised the incident with the Dean of the School of Engineering, his response pushed Dr Leaney to feel that the University was not going to help him. On 1 July 2020, Dr Leaney contacted a solicitor and followed the advice that he was given and took part in negotiations with the University. He continued to work throughout this time. With still no outcome reached by either party on 7 September 2020, this was Dr Leaney’s ‘last straw’, and he resigned on 28 September 2020. He stated that the University had breached the implied term of mutual trust and confidence.

However, the Employment Tribunal dismissed Mr Leaney’s claim. This was on the basis that Dr Leaney had continued to work from 29 June 2020 until 7 September 2020, despite the University’s alleged breach. Dr Leaney could not present to the Tribunal any evidence that indicated that he was continuing to work under protest, or that the University had misled Dr Leaney to cause him to delay his resignation. The Tribunal therefore found that Dr Leaney had affirmed his employment contract.

Dr Leaney appealed to the Employment Appeal Tribunal (EAT).

Decision

The EAT confirmed that while affirmation can still be implied by an employee’s actions, it was found that this time period should not be the only factor to consider.

The EAT considered elements such as:

• acknowledging Dr Leaney’s 40 years of service which meant that resigning might have involved particular distress,
• the work he had been doing over the summer holiday period and whether he was doing duties of such a nature or significance and
• that Dr Leaney had hoped that the negotiations over the summer would lead to a resolution of his concerns.

The appeal was upheld and remitted to the same tribunal.

Learning points

The EAT has set a clear message to employers that if an employee delays in resigning, this will not always prevent the progression of a constructive unfair dismissal claim. All relevant circumstances will be considered when evaluating this point of law. It is also a reminder to employees to be conscious of their timeline when considering if a claim is necessary.

How we can help

With so many factors to consider, understanding how to respond appropriately in matters of potential constructive dismissal and how to carry out or respond to further investigation properly in relation to grievances, could avoid a lengthy and costly Employment Tribunal and appeal processes.

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.