Constructive dismissal & delayed resignation

Constructive dismissal and delayed resignation can prove to be difficult situations for some employers. Our team of experts look into a case that could help when looking to tackle issues like these.

Mr Leaney was a lecturer and halls warden at the University of Loughborough for over 40 years.

In January 2019, Mr Leaney was put under disciplinary investigation due to concerns over how he handled a situation in one of his designated halls of residence. The investigation found that there was “no formal case to answer”.

There was then a long series of communication between the legal representatives of Mr Leaney and the university about the matter, as well as the possibility of mediation. On 29 June 2019, the university stated that it did not want to discuss the matter any further and that “the time to discuss [Mr Leaney’s] role of warden had passed.”

Discussions of mediation continued to take place, but a meeting was never organised. As a result Mr Leaney resigned on 28 September 2019, relying on this failure as the “last straw.”

The tribunal concluded that he had affirmed his contract of employment by waiting three months to resign, and therefore his constructive unfair dismissal claim failed.

However, on appeal, the Employment Appeal Tribunal (EAT) held that the delay did not constitute affirmation. The EAT considered that the delay was concurrent with the university’s summer holidays and a period of illness, and the fact that Mr Leaney had over 40 years’ service.

As such, a longer decision time was justifiable. Additionally, as there were ongoing mediation discussions, the delay allowed more time for the matter to be resolved. As a result, the claim was remitted back to the tribunal.

What does this mean?

When dealing with a constructive dismissal claim, it is important to assess the individual circumstances of a case before assuming that delay means affirmation of the contract of employment, especially where an employee has long service.

If your business needs help with constructive dismissal, delayed resignation or any other matter, our employment law team can help.

Our Legal 500-rated employment law team are experts in guiding businesses of all sizes and backgrounds through a range of issues that may arise, whether that’s redundancy and staff reorganisation, restrictions on competition post-employment, protecting confidential business information, employment and consultancy contracts and more.