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Mere passage of time did not affirm contract in constructive dismissal case

on Friday, 12 January 2024.

The Employment Appeal Tribunal (EAT) has confirmed that in some circumstances an employee's delay before their resignation will not negate the right to bring a constructive dismissal claim.


Employees with more than two years service can resign and claim constructive dismissal if their employer commits a fundamental breach of their contract of employment. Where the employee waits too long after the breach before resigning, this can mean the right to claim constructive dismissal is lost.

In the case of Leaney v Loughborough University, Dr Leaney was primarily a member of academic staff at a university. He also took on a warden role at one of the university's halls of residence towards the end of his employment. Following an incident before the summer holidays involving his warden role, he sought legal advice and negotiated with the university over the summer break. The negotiations were unsuccessful and when Dr Leaney returned to work at the start of the new academic year he first went off sick and subsequently resigned. There was a gap of around three months between the date of the alleged breach of contract and the resignation. Dr Leaney brought a claim for constructive dismissal.

An Employment Tribunal rejected the claim. It found that the gap between the date of the employer's last alleged breach of contract, and the date of the resignation was too long. The Tribunal considered that in the intervening period, Mr Leaney had affirmed the contract.

Dr Leaney appealed to the EAT.

EAT decision

The EAT allowed the appeal and remitted the claim to the same Tribunal. The EAT confirmed that the starting point is where one party commits a fundamental breach, the other may accept the breach as bringing the contract to an end or may affirm the contract. A delay in communicating a decision to accept a breach will not in and of itself amount to affirmation. However, given the nature of an employment relationship, a delay may give rise to implied affirmation depending on what has happened in the intervening period, eg whether the claimant has continued to work and receive pay.

The EAT went on to explain that if the injured party communicates that they are considering their position, or seeks to allow the other party to put right the alleged breach, a delay will not necessarily lead to implied affirmation of the contract.

In Dr Leaney's case, the period of delay coincided with the summer holidays where he was not doing significant work. Negotiations were taking place during the summer and when it came to returning to work, Dr Leaney had gone off sick. In addition, the EAT confirmed his long service might have meant that he reasonably needed longer to make up his mind before resigning.

Learning points

This is a fact-sensitive case, but sets out a useful example of when a delay between the alleged breach and the employee's resignation will not necessarily affirm the contract. Employers facing similar scenarios should carefully consider the actions of both parties in the intervening period when considering their response to constructive dismissal proceedings.

For more information or advice, please contact Ella Straker in our Employment team on 07584 220 286, or complete the form below.

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