Constructive Dismissal: was a contract of employment affirmed by an employee when he waited three months to resign?

A new case has shed light on the issue of whether an employee affirmed a contract of employment when he waited three months to resign.

In the case of Leaney v Loughborough University the Employment Appeal Tribunal (EAT) clarified that the mere passage of time between a last straw event and an employee’s resignation does not conclusively determine the affirmation of a contract of employment. Instead, the focus should be on the conduct during the relevant period that might signify an express or implied communication of affirmation.


Mr. Leaney, a university lecturer with over four decades of service, tendered his resignation in September 2020, alleging constructive unfair dismissal based on a cumulative breach of the implied duty of trust and confidence. The catalyst for his resignation was concerns raised about his handling of a student self-harm incident dating back to November 2018.

The original Employment Tribunal concluded that Mr. Leaney had affirmed his contract during the three-month period leading to his resignation. Factors cited in this decision included the absence of evidence that the University misled him during negotiations and his receipt of legal advice. However, the EAT challenged this approach, emphasising several key principles that provide a nuanced perspective on constructive dismissal cases.

Affirmation determined by conduct, not time

The central principle emphasised by the EAT is that the determination of affirmation should be rooted in an analysis of the conduct exhibited during the relevant period, rather than a simplistic consideration of the passage of time. This signifies a departure from a rigid assessment, urging a more contextual examination.

Express or implied affirmation required

The EAT highlighted that mere delay in decision-making, without an express or implied affirmation, does not constitute affirmation. Affirmation, whether express or implied, needs to be established based on the actions and communications of the parties involved.

Consideration of dynamic employment relationship

Acknowledging the dynamic nature of the employment relationship, the EAT underscored the need for a nuanced assessment. A prolonged delay in resignation may imply affirmation, but this determination hinges on the specific events and interactions during that period.

Employee’s actions during delay period

The EAT noted that an employee’s proactive performance of duties or acceptance of significant performance can serve as evidence of implied affirmation. However, this may not hold true if the employee communicates contemplation or seeks to provide the employer an opportunity to rectify the breach. A period of negotiation before resignation is also relevant. Such negotiations may signify an employee’s attempt to allow the employer to rectify issues before resorting to resignation, and delay for this purpose may not necessarily indicate affirmation.

The EAT criticised the original Tribunal for focusing solely on the passage of time and failing to consider relevant factors. These factors included the coincidence of the delay period with summer holidays, ongoing negotiations between Mr. Leaney and the university, Mr. Leaney’s subsequent sick leave, and his extensive length of service.

What does this mean for employers going forward?

This ruling highlights the importance of a comprehensive assessment of circumstances and conduct rather than relying solely on the passage of time. The EAT’s decision provides clarity on factors to be considered when determining whether a contract of employment has been affirmed after an alleged breach by an employer.

Employers are advised to be mindful of the specific circumstances surrounding the alleged breach and the employee’s actions during any delay period. Constructive dismissal claims, renowned for their difficulty, necessitate employees to not only demonstrate a breach of contract but also show that they did not affirm the contract of employment and resigned as  a direct response to the breach.

Our Employment Team at Lupton Fawcett LLP is a multi-awarded team which can give specialist advice on any employment matter affecting you or your business. If you would like some advice on any issues raised in this article or generally  please do not hesitate to get in contact with a member of our Team who will be able to advise you on  0333 323 5292 or