The Employment Appeal Tribunal (EAT) has held in Leaney v Loughborough University that a tribunal was wrong to conclude that a contract of employment had been affirmed when the claimant, following a "last straw" breach by the respondent, waited three months to resign.
The claimant was a university lecturer and hall of residence warden with over 40 years' service. A student within the hall of residence self-harmed, and concerns were raised about the approach that the claimant took in dealing with the matter. A disciplinary procedure was followed and it was found that there was no formal case to answer. The claimant's manager decided to discuss their concerns informally, as a result of which the claimant raised an informal grievance regarding his manager's behaviour and failure to deal with the matter. This escalated to a formal grievance which was partially upheld. When the claimant appealed the decision in June 2020 the appeal was not taken forward. There was then a period of negotiation between solicitors and the claimant resigned with notice on 28 September 2020, claiming constructive unfair dismissal. The failure to deal with the appeal was relied on as the "last straw". The tribunal dismissed his claim holding that he had affirmed his contract during the three months between then and 28 September.
The EAT remitted the issue of affirmation for reconsideration. In doing so it held that tribunals should take into account all the surrounding facts and circumstances and not focus too much on the passage of time when considering whether affirmation has taken place. It held that length of service is a relevant factor in deciding whether the contract has been affirmed where there has been a period of delay. An employee with long service may reasonably take longer to consider their position before taking the leap away from a secure job, but this was fact sensitive. Also a delay in order to try to put things right via a period of negotiation is relevant and may not amount to affirmation.
Take note: The decision in Leaney shows that a delay in resigning following a "last straw" breach will not necessarily mean that the contract of employment has been affirmed. In this case the claimant's long service and the fact that there had been attempts to negotiate between the parties to rectify the problem were both relevant factors to consider.
