Not on its own, found the Employment Appeal Tribunal in the case of Mr Leaney v Loughborough University. A delay in resigning can defeat a claim for constructive dismissal, but in this case an employee who waited over two months before resigning did not lose the right to claim.
When can employees bring a claim for constructive dismissal?
Employees can bring a claim for constructive dismissal where they are forced to leave their job where their employer commits a fundamental breach of their employment contract. An employee who delays resigning following such breach can be deemed to have ‘affirmed’ the contract of employment, so losing the right to claim constructive dismissal.
Mr Leaney was employed by Loughborough University as a member of academic staff in the School of Engineering and as a warden, working in the University’s halls of residence. An incident arose regarding Mr Leaney’s warden role, in which a student self-harmed and concerns were raised regarding Mr Leaney’s handling of the situation.
Following this, Mr Leaney raised a grievance and an internal investigation process commenced. Mr Leaney then entered into negotiations with the University for his exit, these negotiations did not succeed and Mr Leaney subsequently resigned on 7 September 2020.
The tribunal considered that Mr Leaney had concluded at the end of June 2020 that the University was not going to help him and that by not resigning until 7 September he had affirmed the contract.
The Employment Tribunal found that Mr Leaney had affirmed his contract in the three month period, preventing him from bringing a claim for constructive dismissal.
Mr Leaney appealed this decision to the Employment Appeal Tribunal (EAT), who found that a delay in resigning in itself will not necessarily act to affirm the contract.
The EAT explained that the employee may act to affirm the contract where they continue to work for their employee and receive pay. The EAT further explained that this was not the case here, the alleged delay took place over the summer holidays, in which time Mr Leaney was not carrying out work for the University as he typically would. For the remainder of the period, taking place during the university term, Mr Leaney was off sick and did not carry out work for the University. The EAT also found that an employee may not act to affirm their contract, in the event of a delay before resigning if they communicate to their employer that they need additional time to consider the situation and make up their mind regarding resignation.
The EAT reiterated that where one party has committed a fundamental breach of contract, the other party may elect to treat the contract as being brought to an end (affirming the breach) or as continuing. It remains the case that where a party treats the contract as continuing following the fundamental breach, their right to treat the conduct as bringing the contract to an end is lost.
In this case the delay in itself did not defeat the claim. Employers facing similar circumstances should consider the reason for the delay, and should not view any delay as a clear affirmation of contract. The question of whether an employee has affirmed the contract is to be determined on the specific facts of the case and is not straightforward to identify.
If you have any questions about any employment law issue, please do contact a member of the Employment team.