Constructive Dismissal – how long do I wait before I resign?

Constructive dismissal claims aren’t the easiest claims for employees to bring. Why? Because the burden of proof rests on the employee to show that there has been a fundamental breach of their contract of employment that left them no option but to resign. 

In most cases, this a high hurdle for a Claimant to overcome. Typically, there has to be a last straw incident (a fundamental breach of the contract by the employer) that triggers the employee’s resignation.  Employees must not wait too long to resign after the last straw incident, otherwise there is a risk that they may be deemed to have accepted the fundamental breach and waived their right to resign. Employees in this situation ought to check the legal position at the earliest opportunity. There is a false assumption that constructive dismissal is a good option when thinking about leaving a job. This is not the case. 

The issue of how long is too long to wait before you resign was addressed on appeal by the Employment Appeal Tribunal (EAT) in the case of Leaney v Loughborough University.

Mr Leaney was a lecturer at Loughborough University and had worked for the university since 1979. In addition to his teaching duties, he was also a halls of residence warden. Concerns were raised about the way he had handled a situation involving a student who was self-harming. A disciplinary investigation was instigated but concluded that there was no formal case to answer. Mr Leaney’s manager however wanted to discuss these concerns with him informally. Mr Leaney filed a grievance against his manager, which was only partially upheld. He appealed but the university failed to take steps to organise the grievance appeal and as a result he resigned as warden in December 2019. Mr Leaney then raised the matter involving the student with his Dean of Engineering. The Dean told him that it was not within his remit to deal with this. 

On 1 July 2020, Mr Leaney instructed a solicitor, who conducted an unsuccessful negotiation to achieve resolution of the issues in his working environment. Mr Leaney was very anxious about engaging with students in the next upcoming academic year. He was signed off sick from work on 10 September 2020 and gave notice of resignation on 29 September 2020. He brought a claim for constructive dismissal, alleging that the university had conducted itself in a manner that amounted to a cumulative breach of the implied term of trust and confidence.

The tribunal dismissed Mr Leaney’s claim, holding that Mr Leaney could not rely on the ending of negotiations on 7 September as the last straw incident. Instead, it found the last straw incident was on 29 June 2020 when the Dean had told him that there was nothing he could do about the matter involving the student.  The tribunal held that Mr Leaney had not been misled during the negotiations such as to cause him to postpone his resignation, that he was receiving legal advice and had not said that he was working under protest either.  As a result, he had affirmed the fundamental breach by his conduct.

Mr Leaney appealed to the EAT stating the tribunal was wrong when it found that three months was not a reasonable period of delay before it would amount to an affirmation of the breach.

The EAT held that the first tribunal was indeed wrong and upheld Mr Leaney’s appeal. It said the starting point is whether the employee accepts the breach as bringing the contract of employment to an end or treats the contract as continuing, i.e., affirming the breach. 

Affirmation means that the employee loses the right to bring a claim for constructive dismissal. It summarised that an affirmation can be expressly communicated or implied by the employee’s conduct but mere delay in communicating a decision to accept the breach, will not in the absence of something amounting to an express or implied affirmation, by itself amount to an affirmation. However, if there is a significant delay between the breach and resignation, that could give rise to an implied affirmation. The EAT said that the tribunal should have focused on what conduct might have amounted to express or implied affirmation.

It considered all the relevant factors to this case, such as the fact that the period coincided with the summer holidays where Mr Leaney was not doing any significant work, that negotiations were underway to seek a resolution and that Mr Leaney was off sick for part of the period.  The EAT also said that his exceptionally long length of service meant that he might reasonably need longer to make up his mind about leaving.  

What is clear from this case is that whether an employee has affirmed a breach of contract will be fact sensitive for a tribunal to answer. A tribunal needs to look at everything to see whether it is reasonable to conclude that an employee has affirmed a breach, by continuing to work after it has occurred.  

From my perspective, I would not recommend that any employee waits too long before deciding whether to leave. That said, many employees know when they cannot continue to work any longer because there has been a last straw incident that makes it intolerable for them to carry on working.  

In spite of this decision, it will always be open to an employer to raise affirmation as a defence to a claim for constructive dismissal. The case is interesting in providing some needed guidance on consideration of how long is too long to wait before deciding to resign.

This comes hot on the heels of another recent constructive dismissal claim where the question of affirmation was also considered.  You can read our MD/founder, Karen Jackson’s blog  Constructive dismissal – will a grievance affirm my contract? for more information.

This blog was written by Anita Vadgama, Partner at didlaw.