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Constructive dismissal claims: let’s face it, they can be a bit of a pain can’t they?

A claim for constructive dismissal is where an employee resigns saying “employer, you’ve breached my contract of employment. I find that breach intolerable and I’ve got no choice but to resign in response and I can now class myself as having been dismissed by you.”

The main thing here is that the employee must “accept” the breach and resign in response. If they “affirm” the contract (by carrying on working and saying “it’s ok”), then the breach falls away and the contract continues.

So, what happens if, let’s say, an employee waits three months from the last breach of contract to resign? Is their claim for constructive dismissal dead in the water?

(Lawyer’s answer incoming!) Potentially, because they might be said to have “affirmed” the contract. BUT it all depends on the particular circumstances of the case.

And would you believe? The Employment Appeals Tribunal (EAT) have recently issued a really interesting judgment on this very point, providing some further guidance that we think this is going to be helpful for you. So let us summarise what’s happened below.

In Leaney v Loughborough University, the Claimant was a lecturer at Loughborough university and he had over 40 years’ service (wow!)

A student raised a complaint about him and he disputed this, raising an informal and formal grievance. On 29 June 2020, the University told the Claimant that they would not look into the issue any further.

The Claimant didn’t resign in June though and waited until 28 September 2020 to resign. However, between June and September 2020 his lawyer had been negotiating with the University (although there was no evidence as to the contents of those negotiations).

The Claimant resigned and brought a claim for constructive dismissal, and tried to rely on the notification he received on 29 June 2020 as a repudiatory (serious) breach of his contract of employment.

At first instance, the Tribunal found that he had affirmed his contract of employment between June and September as he had not resigned straight away and had continued doing some work for the University.

The EAT didn’t agree with the Tribunal’s approach though and instead found that:

  • Whilst consideration could be given to the length of time between the alleged breach and resignation, when deciding whether the employee has affirmed the contract, tribunals should not focus too much on the passage of time. Instead, all of the relevant facts and circumstances should be taken into consideration.
  • One factor that is particularly relevant in deciding whether the contract has been affirmed where there has been delay, is the employee’s length of service. The EAT said that employees with long service may reasonably take longer to consider their position before resigning because they will be forfeiting their job security. This is, however, fact sensitive and each case needs to be considered in its own right, taking into account factors such as the requirements and T’s & C’s of the role and the job market at the point of resignation.
  • Where there has been a period of negotiation between the employee (or their representative) and the employer, this will also be a relevant factor in determining whether the contract has been affirmed. It might be that the employee is giving the employer the chance to correct the breach and any delay in those circumstances this may not amount to affirmation. This may also apply if a formal grievance was being looked into for example.
  • Tribunals shouldn’t focus on what the employee didn’t do. Instead, they should focus on what the employee actually did.

What are the takeaways here? Well, if an employee doesn’t resign straight away after an alleged breach of contract, that is certainly not going to help their constructive dismissal claim but it’s not going to be fatal to it either. The key for you as an employer is to get your response right straight from the get-go – whether that be when the employee starts to raise concerns or hands in their resignation. That is going to put you in a better position to defend a constructive dismissal claim in the long run.

Remember, Precept can help with this. We’ve headed off countless attempts by disgruntled employees to claim constructive dismissal and we are here and happy to help you!