Leaney v Loughborough University [2023] EAT 155

Dr Leaney, employed for over 40 years, resigned alleging constructive dismissal through cumulative breach of trust and confidence. The tribunal found he had affirmed the contract during a three-month delay before resigning. The EAT allowed his appeal, finding the tribunal had erred in its approach to affirmation.

Facts

Dr Paul Leaney was employed by Loughborough University from 1979, initially as a research assistant, then as a university lecturer from 1982 and a university teacher from 2019. Alongside his teaching he served for many years as warden of halls of residence, with Dr Manuel Alonzo as his effective line manager in that capacity.

In November 2018, a student in Dr Leaney’s hall (student X) self-harmed. The handling of the matter led to a disciplinary investigation against the claimant, which found no formal case to answer but raised concerns about his judgment. This in turn triggered an informal grievance by the claimant against Dr Alonzo, which became a formal grievance, partially upheld. The claimant appealed in May 2019, but no appeal panel was convened despite his repeated requests.

The claimant resigned as warden in June 2019. Correspondence continued into 2020 regarding the unresolved grievance and the student X matter. On 29 June 2020, the claimant met Professor Conway, who indicated that the student X matter lay outside his remit. The tribunal found the claimant concluded at that point that the university would not help him.

The claimant instructed solicitors on 1 July 2020. Negotiations followed between his solicitor and the university, the substance of which was not in evidence. The negotiations ended around 7 September 2020. The claimant was signed off sick from 10 September 2020 and resigned by email on 28 September 2020.

Issues

The appeal was concerned solely with whether the employment tribunal had erred in concluding that the claimant had affirmed the contract between 29 June 2020 (the last potential ‘last straw’ event) and his resignation on 28 September 2020. The decision on the date of the last potential last straw was not challenged, and the EAT expressed no view on whether there had been a fundamental breach.

Arguments

For the appellant

Mr Flood submitted that the tribunal had relied principally on the mere passage of time, without identifying any positive conduct from which affirmation could be inferred. He argued the tribunal had failed to give sufficient weight to: (i) the ongoing negotiations between the claimant’s solicitor and the university; (ii) the fact that the relevant period largely coincided with the summer vacation, when the claimant’s duties were reduced; (iii) the claimant going off sick on 10 September 2020 until his resignation; and (iv) the claimant’s 40 years of service, relying on G. W. Stephens & Sons v Fish [1989] ICR 324 for the proposition that length of service is a relevant factor.

For the respondent

Mr Heard relied on DPP Law Ltd v Greenberg [2021] EWCA Civ 672 to submit that tribunal decisions should be read fairly and as a whole, without being hypercritical. He argued the tribunal had correctly self-directed itself on the law and had applied those principles. The tribunal was plainly aware of the claimant’s length of service, the holiday period, the sickness absence, and the negotiations, and had properly concluded that the mere fact of negotiations and the involvement of solicitors did not amount to working under protest.

Judgment

The EAT (HHJ Auerbach presiding) allowed the appeal. While the tribunal’s self-direction included references to Western Excavating, Cox Toner, and Buckland, a number of features of the decision gave cause for concern.

The EAT considered that the tribunal had focused too much on the absence of factors that might have pointed away from affirmation (such as the claimant not expressly stating he was working under protest) rather than on the question of what conduct during the relevant period might amount to express or implied affirmation. The tribunal’s use of language such as the ‘obligation to make up his mind’ and the absence of circumstances that would ‘justify the delay’ reflected the unvarnished language of Lord Denning MR in Western Excavating, but later authorities such as Bashir and Cox Toner made clear that affirmation requires conduct or circumstances from which it can be inferred, not mere passage of time.

On length of service, the EAT held the authorities indicate this can be relevant in a broad sense, particularly where a claimant would be giving up a secure position or accrued benefits. While this point alone might not have caused the EAT to allow the appeal, the tribunal should ideally have addressed whether the claimant’s decades-long service meant he reasonably needed appreciable time to decide.

The EAT identified more serious shortcomings. The tribunal did not consider whether any work the claimant was doing during the summer was of such a nature or significance to itself constitute affirmation, particularly through the lens of academic work during a vacation period. The tribunal noted but did not address in the affirmation context the claimant’s sickness absence from 10 September. Most significantly, the tribunal failed adequately to consider the potential significance of the ongoing solicitor negotiations. Whilst the tribunal was right that involving solicitors is not automatically equivalent to working under protest, the fact that negotiations were taking place which might have led to some resolution, and that the claimant went off sick promptly once those negotiations ended, were relevant matters. Drawing on Brooks v Brooks Leisure Employment Services Ltd [2023] EAT 137, the EAT noted that where an employee postpones resigning to pursue a process that might resolve their concerns, that will generally not amount to affirmation.

The matter was remitted to the same Employment Judge (Adkinson) for fresh consideration of the affirmation question and, if necessary, the remaining issues. The EAT considered that the judge could be trusted to approach the matter conscientiously afresh in light of the EAT’s guidance.

Implications

The decision reinforces the principle that affirmation in the constructive dismissal context is not simply a matter of the length of delay between the alleged breach and the resignation. Tribunals must focus on what conduct or circumstances during the relevant period amount, expressly or impliedly, to affirmation. Mere delay, without more, is not affirmation, although prolonged delay accompanied by conduct consistent only with the contract continuing may provide evidence of implied affirmation.

The decision provides helpful guidance on several factors that may be relevant to the affirmation analysis: the nature and extent of any work actually performed during the relevant period (particularly where, as in an academic context, vacation periods involve different activities from term time); periods of sickness absence (which do not automatically preclude affirmation but should be considered); ongoing negotiations or processes which may resolve the employee’s concerns; and the employee’s length of service, particularly where this is linked to specific circumstantial factors such as job security or accrued benefits.

The judgment is significant for practitioners advising employees considering whether to resign in response to alleged repudiatory conduct. It supports the proposition that an employee who delays resigning in order to allow the employer an opportunity to address concerns through a process, including solicitor-led negotiation, will not necessarily be taken to have affirmed simply because they have not expressly stated they are working under protest. Equally, the decision is a reminder that the affirmation analysis is fact-sensitive, and the EAT was careful not to express any view on whether, on reconsideration, the claimant had in fact affirmed.

Verdict: Appeal allowed. The tribunal erred in its approach to affirmation. The matter was remitted to the same Employment Judge (Adkinson) for fresh consideration of the affirmation question and, as necessary, the further issues to which the complaint gave rise.

Source: Leaney v Loughborough University [2023] EAT 155