Dr Paul Leaney v Loughborough University

Implied affirmation of an employer’s repudiatory breach turns on the employee’s conduct and the circumstances after the breach, not on delay viewed in isolation. A tribunal must identify conduct which expressly or impliedly communicates an election to continue the contract.

The assessment is fact-sensitive. Relevant matters may include the employee’s work during the period, sickness absence, attempts to resolve the dispute through negotiations or procedures, and the practical consequences of resigning after long service. The absence of an express reservation of rights does not itself establish affirmation.

The claimant resigned after about 40 years’ employment and brought a complaint of constructive unfair dismissal. He alleged a cumulative breach of the implied term of trust and confidence.

The Employment Tribunal found that 29 June 2020 was the last event capable of being relied on as a last straw. It did not decide whether that event formed part of a fundamental breach. It dismissed the claim because the claimant had affirmed the contract before resigning on 28 September 2020.

On appeal, the sole issue was whether the tribunal had erred in deciding affirmation.

1. Appeal allowed. The tribunal erred in law in its approach to implied affirmation. Its reasoning concentrated too heavily on the nearly three-month interval between the last potentially relevant act and resignation, and on the absence of matters which might have explained delay.

2. Affirmation is an election communicated expressly or impliedly by conduct. Delay alone does not amount to affirmation. A significant delay may be evidential only because of conduct or circumstances during it from which an election to continue the contract can properly be inferred.

3. The tribunal did not identify work done, wages received, or other conduct by the claimant that was sufficiently significant to amount to affirmation. It treated the summer vacation principally as removing a reason why the claimant could not resign, rather than considering whether the nature and extent of work undertaken during that period bore on affirmation.

4. The tribunal also had to consider the claimant’s sickness absence during the final weeks, his lengthy service and its practical implications, and the negotiations between solicitors. The absence of evidence of the negotiations’ detailed content prevented their treatment as a fresh last straw, but did not make their existence irrelevant to whether the claimant was allowing an opportunity for resolution before deciding whether to resign. The lack of an express statement that he was working under protest was not conclusive.

5. The case was remitted to the same tribunal for a fresh determination of affirmation on the existing evidence. If necessary, it must then determine the remaining issues, including whether there was a fundamental breach.

• Employment Appeal Tribunal: allowed the claimant’s appeal in [2023] EAT 155 and remitted the issue of affirmation, and any consequential issues, to the same Employment Tribunal.
• Employment Tribunal: dismissed the constructive unfair dismissal complaint, holding that the claimant had affirmed the contract after the last potentially relevant act.