Constructive dismissal occurs where an employee has resigned, but treating themselves as having been dismissed. This may sound like an oxymoron but in effect it occurs where the employer has committed a breach of the employee's contract. Sometimes this is a breach of the written terms e.g. failure to pay salary, but more often than not it is a breach of the implied duty of mutual trust and confidence. In essence, the employee has been treated so poorly that they have no choice to accept that their employment has reached its end, and resign by accepting the employer's breach. They are treating themselves as having been dismissed, without the employer ever having to say the words "you're fired".

Constructive dismissal claims are generally considered to be more complex than claims for what we might term “ordinary unfair dismissal”. This is because there is a burden on the employee in the first instance to show that a dismissal has taken place. There are a two main factors to this:-

1. There must be an act of repudiation.  Sometimes this is a singular act and sometimes it is several acts concluding in a final straw event which taken individually would not be a breach of the contract, but taken collectively are a breach of the contract. Often this occurs in cases of the bullying, or failure to deal with grievances;

2. In addition to the repudiatory act(s), the employee must resign in response to the breach. This is where a lot of employees end up in difficulties. Primarily the difficulties occur because of the practical realities of leaving your job. Most people can't afford to leave their job immediately with no alternative employment. Most people cannot afford to risk being unemployed for several months where they have a secure and potentially highly paid job. However a delay (e.g. for 6 months while you look at another job) may lead to the conclusion that you did not resign in response to the breach, and instead affirmed the contract by your continued employment.

The case of Leaney v Loughborough University

The recent case of Leaney v Loughborough University has shed some further light on the factors that the Court will consider when determining whether there has been an unreasonable delay in resigning following a final straw event.

The facts of the case are, briefly, that the claimant was a university lecturer. He had been employed by the university for over 40 years. A complaint was raised against him by a student which he disputed. In June 2020 the university informed him that they could not continue to investigate the complaint, and they were doing nothing further about it. Mr Leaney then instructed solicitors and a period of negotiation took place between the solicitors and the university. On 28th September 2020, just shy of 3 months after the "final straw event" the claimant resigned from his employment giving notice but claiming constructive unfair dismissal.

The Tribunal at first instance held that by delaying his resignation for 3 months, Mr Leaney had affirmed the contract, and could not rely on the final straw event in June as the reason for his resignation. Mr Leaney appealed.

The Employment Appeals Tribunal (EAT) disagreed with the Tribunal's decision and remitted the issue of affirmation for reconsideration. Effectively, this was the Employment Appeals Tribunal telling the Tribunal that they had got their decision wrong and go back and reconsider it.

The EAT in reaching that decision decided that:

• Tribunals should avoid too much focus on the amount of time which has passed in determining whether the contract has been affirmed. The surrounding facts and circumstances should all be considered and weighed up in reaching the final decision.

• The claimant's length of service is a highly relevant factor in deciding whether affirmation has taken place where there has been a period of delay. This is fact sensitive, but in circumstances where employees with long service who take some time to consider leaving a job which is secure, this may not necessarily amount to affirmation of the contract.

• It was highly relevant that there was negotiation between the university and the claimant's solicitors between June and September when the claimant resigned. The Tribunal should always take into account negotiations which may be the employee trying to give the employer an opportunity to put things right before resigning. Delay of the resignation whilst this takes place is not necessary tantamount to affirmation. That being said, if you are an employee in this position, it is always wise to explain that you are continuing to work "under protest", that the contract is not affirmed, and that the period of delay is an opportunity for the employer to put things right.

This case is probably welcome news for many employees. Advising on constructive dismissal claims has always been a tricky issue for solicitors. The practical realities of leaving one's job cannot be underestimated, and it will often be difficult for an employee with long service to leave their role after a significant period in their lives, without giving themselves the opportunity to consider the consequences of doing so.

However, employees should not take for granted that they can delay for a period of many months and that the Tribunal will decide that they have not affirmed the contract. The EAT specifically emphasised that Tribunals are to consider each case on its facts, and that these cases are highly fact specific. It is probably enormously relevant that the claimant had been employed by the university for over 40 years. It is exceedingly rare that employees have such a period of service with a single employer.

If you are in a position of considering leaving your job as a result of your employer's conduct, it is always advisable to seek independent legal advice on your particular circumstances before making a decision. It is inadvisable to delay seeking that advice because, in many cases, the conclusion reached by the Tribunal will be that any significant period of delay (sometimes weeks or even days have been sufficient to amount to affirmation) will lead to a conclusion that the employee has affirmed the contract.

If you have any queries regarding constructive dismissal claims, please do not hesitate to contact Charlotte Braham by email or on 01494 893529.