Was a tribunal correct to conclude that a contract of employment had been affirmed, when a Claimant waited three months to resign, following a ‘last straw’ breach by the Respondent?
No, held the EAT in Leaney v Loughborough University.
The Claimant was a university lecturer with over 40 years’ service. A complaint was raised against him by a student which he disputed. On 29 June 2020, he was told that the university could not look at the issue any further. There followed a period of negotiation between solicitors. The Claimant resigned with notice on 28 September 2020, claiming constructive unfair dismissal.
The Claimant relied on the notification he had received on 29 June 2020 as the ‘last straw’. The tribunal held that he had affirmed the contract of employment during the three months between 29 June, and his resignation on 28 September 2020.
The EAT disagreed with the tribunal’s approach and remitted the issue of affirmation for reconsideration, holding:
- tribunals should not focus too much on the passage of time when considering whether affirmation has taken place. All the surrounding facts and circumstances should be weighed.
- length of service is a relevant factor in deciding whether the contract has been affirmed where there has been a period of delay. But it is fact sensitive. An employee with long service may reasonably take longer to consider their position (without necessarily having affirmed) before taking the leap away from a secure job, but this needs to be looked at in context in each case.
- a period of negotiation before resignation is relevant. Negotiations could be an employee’s attempt to give the employer the opportunity to ‘put things right’ before resigning. Delay in order to do this may not amount to affirmation.
- the tribunal in this case had focused incorrectly on things that did not happen (the Claimant did not delay his resignation because of student exams and did not state that he was working under protest), which, if they had happened, might have pointed away from affirmation. They should have instead focused on what conduct there had been which might have amounted to affirmation.