Dr Paul Leaney v Loughborough University

The appellant resigned and brought a claim for constructive unfair dismissal, alleging a cumulative breach of the implied term of trust and confidence. The employment tribunal identified 29 June 2020 as the last act that could be relied on as the "last straw" but dismissed the claim on the basis that the claimant had affirmed the contract by delaying resignation until 28 September 2020.

The Employment Appeal Tribunal held that the tribunal erred in law in its approach to affirmation. The tribunal relied too heavily on the passage of time and failed to analyse the claimant’s conduct and surrounding circumstances during the period between the last act and resignation, including ongoing negotiations with the employer, the fact that the period covered the summer vacation, the claimant’s subsequent sickness absence, and his very long service. The EAT remitted the issue of affirmation to the same tribunal for fresh consideration in light of the facts found and, as necessary, any further issues arising from that reconsideration.

Background and parties: The claimant was a long-serving academic employee who resigned and alleged constructive unfair dismissal arising from a series of matters culminating in an incident involving a student ("student X") and the respondent’s subsequent handling of related grievance and appeal processes. The respondent is Loughborough University.

Procedural posture: This is an appeal from a reserved decision of the employment tribunal (Employment Judge Adkinson, Leicester) dismissing the claimant’s unfair dismissal complaint; the appeal was heard by the Employment Appeal Tribunal.

Nature of the claim / relief sought: The claimant sought a declaration of constructive unfair dismissal and associated remedies following resignation said to be in response to a cumulative repudiatory breach of the implied term of trust and confidence.

Issues framed by the court:

• What was the last act or omission that could constitute the "last straw"?
• Whether the respondent was then in fundamental breach of contract.
• Whether the employee had affirmed the contract between that last act and his resignation.

Tribunal findings and EAT reasoning: The tribunal found the last act capable of being relied on was 29 June 2020 and concluded that the claimant had affirmed the contract by delaying resignation until 28 September 2020, relying principally on the length of the delay, absence of evidence of misleading conduct by the university during negotiations, absence of an express reservation that he was working under protest, and the fact he had received legal advice. The EAT accepted the tribunal’s factual findings but concluded the tribunal misapplied the law on affirmation by focusing excessively on delay rather than on whether the claimant’s conduct or the circumstances between 29 June and resignation constituted an express or implied affirmation. The EAT stressed that matters such as the existence and purpose of negotiations, the summer vacation context for academic duties, the claimant’s subsequent sickness absence, and his forty years’ service were potentially material to the inference of affirmation and required proper consideration. The EAT allowed the appeal and remitted the point of affirmation to the same tribunal for reconsideration in accordance with the guidance given.

Appeal allowed. The EAT concluded the employment tribunal erred in law in its approach to the issue of affirmation, relying too heavily on mere delay rather than analysing conduct and surrounding circumstances from which affirmation might be inferred; the matter of affirmation was remitted to the tribunal for fresh consideration in light of the findings of fact and the points identified by the EAT.

Appeal from the Employment Tribunal (Leicester), reserved judgment of Employment Judge Adkinson dismissing the claimant's unfair dismissal complaint; allowed by the Employment Appeal Tribunal, Neutral Citation [2023] EAT 155, and remitted to the tribunal for further consideration of affirmation.