Following an alleged substantial and fundamental breach of contract by the employer, can the employee affected proceed to resign three months from the date of breach so as to claim constructive dismissal or would the employee’s delay amount to affirming the breach?
The Answer
In the case of Dr Paul Leaney v Loughborough University [2023] EAT 155, the Employment Appeal Tribunal decided on the facts of the case that - despite there being a three month delay in the employee taking tribunal action following the breach by the employer, the employee had not affirmed the employer’s breach where the employee, Dr Paul Leaney (P), who had 40 years’ service as an university lecturer was subject to a disciplinary process following a complaint raised by a student that was not upheld but (P) was not happy with the process and raised a grievance with protracted communications continuing after the grievance with the University on 29 June 2020, informing (P) that they were not going to consider the issue any further. Following further communications between parties, (P) resigned on 28 September 2020 which was 3 months from 29th June 2020 and submitted a claim for constructive unfair dismissal.
The Employment Tribunal decided that as (P) remained in employment after the breach on 29th June 2020 he had affirmed the contract of employment and thus had no claim for constructive dismissal, but on (P)’s appeal to the Employment Appeal Tribunal, it was decided on the facts that one should not place too much relevance on the passage of time alone and look at surrounding circumstances as here (P) had 40 years’ service with valuable long service benefits so having to take time to assess options without having affirmed the contract thus to look more at what had happened and what conduct might have pointed towards affirmation.
The Risk/Threat
Where an employee is successful on a constructive dismissal claim then the employer could face a substantial compensation claim.
What You Need To Know
To claim constructive dismissal, an employee needs to have 2 years’ service unless the employee falls within the exceptions to the 2 year rule such as ,amongst other things, matters related to race ,sex, age, disability discrimination, breach of statutory rights and where such an employee alleges breach of contract by the employer and threatening to resign, it is very important that the employer takes appropriate HR advice on the matter.
If you require any further assistance, please do not hesitate to contact our HR/Legal advice line team at 01455 852 028.
