Is constructive dismissal ever a good idea?

As an employment solicitor, advising a client to resign without notice in response to the conduct of the employer is not something I take lightly. Historically, constructive dismissal claims have been notoriously difficult to prove with a high threshold to overcome. Standard advice, if the situation arises, is for an employee to resign immediately after the ‘last straw’ conduct on the part of the employer to avoid the accusation that the contract of employment, by virtue of delay, has been affirmed (in that the conduct has been accepted by the employee and the employment relationship continues undisturbed).

The case of Leaney v Loughborough University has changed the goalposts somewhat and rewritten the rules in relation to claims for constructive unfair dismissal. The Claimant was a University lecturer who had worked for the University for over 40 years. A complaint by a student was raised against him which he disputed. In June 2020 he was told the University could not look at the matter further. Over the next three months there was a period of negotiation between respective solicitors for the parties in the dispute. The Claimant ultimately resigned on 28 September 2020, claiming constructive unfair dismissal. The ‘last straw’ event the Claimant relied upon was the University’s communication in June 2020. As would be expected, the Tribunal held that given the time that had elapsed before resignation, the Claimant had affirmed his employment contract.

The Employment Appeal Tribunal (EAT) overturned the decision. The EAT disregarded the Tribunal’s approach and the case was sent back to the Tribunal to reconsider the issue of affirmation on the basis that:

Tribunals should focus less on the time elapsed when considering if affirmation has taken place. Other factors should be taken into consideration;

The Claimant’s length of service was a relevant factor when deciding if the contract had been affirmed where there was a period of delay. This would be fact sensitive and understandably an employee with long service would take longer time to consider their position without automatically having affirmed the Contract. This would have to be considered on a case-by-case basis;

The period of negotiation before resignation was relevant as this could be an employee’s attempt to give the employer the chance to make things right before resigning. The delay to allow this to happen does not automatically amount to affirmation; and;

The Tribunal in this case had focused on the things that did not happen rather than the things that did happen which might have amounted to affirmation.

On the face of it this case does change things slightly when advising on constructive unfair dismissal claims as delay is not an automatic death knell for a claim. Regardless if I am advising on such a claim I would always take a ‘belt and braces’ approach to avoid a potential loss of the claim in the ET and would still advise a client not to delay when deciding to resign in response to the conduct of their employer. The doctrine of unfair constructive dismissal appears to be becoming broader but it remains a contentious area and any decision to claim constructive dismissal must not be taken lightly.

This blog was written by Elizabeth McGlone, Partner at didlaw.