The recent case of Leaney v Loughborough University 2023 serves to remind employers of their duty to concentrate on what employees do to affirm their contract – rather than what they omitted to do.
Leaney v Loughborough University 2023 – The Background
In this case, the staff member in question had been employed by Loughborough University ever since 1979. Having originally started work as a research assistant, Leaney later progressed onto a university lecturer position. On 28 September 2020, he constructively dismissed himself from the role – arguing there’d been a breach of the implied duty of mutual trust and confidence.
The decision to resign came after he was investigated for disciplinary matters, with Leaney raising a grievance after the fact. On 29 June 2020, he decided the employer was not going to assist him with the grievance. Leaney informed his solicitors about this on 1 July, and they entered into negotiations with the employer. The employee regarded the end of these negotiations as the last straw, resigning on 7 September 2020.
Leaney v Loughborough University 2023 – The Decision
The Employment Tribunal (ET) did not accept the negotiations as sufficient grounds to resign as they were not underhanded in their approach. The ET said the definitive act to rely on was the meeting on 29 June 2020. Therefore, by the date of resignation, he had already affirmed his contract – and could not claim constructive dismissal.
The ET gave the following reasons for rejecting his claim:
- There was no justification for the three month delay between the ‘last straw’ and his actual resignation.
- There was no real evidence of the negotiations between the employer and the employee’s solicitor.
- The employee hadn’t worked under protest from the date of the ‘last straw’ and was getting legal advice during this time.
Leaney v Loughborough University 2023 – The Appeal
Following the decision of the Tribunal, Leaney appealed on the point made about affirmation of his contract. The Employment Appeal Tribunal (EAT) upheld the employee’s appeal claim. It considered application of legal principals and specific factors to help decide the affirmation in the case.
It held that the ET should have looked at the employee’s conduct – as opposed to the delay. It should have focused on what happened, rather than what did not happen. The focus should have remained on the employee’s conduct and if this did or did not amount to affirmation of his contract.
The EAT concluded more specifically on factors the Employment Tribunal should have considered:
- The employee’s length of service was forty years, and the ET had failed to consider that staff who resign after such long service will face anguish and disorder, and will need some time to consider their position.
- The ET did not mention if the employee had been paid his salary, and whether or not it was sufficient to affirmation of the contract.
- The ET did not consider if the employee was conducting his work or his holiday period, which were key factors in affirming his contract.
- There was a failure to consider that the employee had been signed off sick for 3-weeks prior to his resignation. The ET also didn’t consider the significance of lengthy negotiations taking place over this period.
HR and EL Advice from the Experts
This article is for educational purposes only, and does not constitute professional legal advice. If you need assistance with grievances, disciplinaries, contracts, or any other employment matters, please do not hesitate to contact the Quest Advice Line Service for FREE on 0116 274 9193.
