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Constructive Dismissal – what does it mean when an employee delays resigning?

Employees have the right to resign and claim constructive dismissal where they believe their employer has behaved in a way which amounts to a fundamental breach of contract.

The breach by the employer could either be one serious incident, or it could be a series of events which culminates in a ‘last straw’ incident.

However, in the period in between an alleged breach and an employee resigning, it is possible that the employee’s actions may mean they are deemed to be willing to continue their employment despite the breach having occurred. If so, that would mean the contract of employment had been ‘affirmed’ (i.e. the employee can no longer take action regarding the breach).

Affirmation did not take place after three-month delay

The recent Employment Appeal Tribunal case of Leaney v Loughborough University considered whether the Employment Tribunal had correctly decided that an employee had affirmed his contract of employment by waiting three months in order to resign following a ‘last straw incident’.

The Employment Appeal Tribunal found that whilst the passage of time between the ‘last straw’ and the date the Claimant had resigned was relevant, the Employment Tribunal had focused too much on this and had failed to adequately consider other circumstances surrounding the delay.

Other factors to consider

The Employment Appeal Tribunal highlighted a number of factors that it felt should have been considered in determining whether or not affirmation had taken place.

The Claimant had 40 years’ service. Whilst it was not a point specifically raised by the Claimant, the Employment Appeal Tribunal made the point that the decision to resign would be likely to be a more complex decision for someone with such significant length of service. Therefore, it may be reasonable to allow someone with a longer length of service more time for them to reach the decision to resign.

The varying demands of the employee’s role should also be considered. In this particular case, Dr Leaney had felt that he had to leave his resignation until a later date due to him being in the middle of a peak period of work. The Claimant felt that resigning immediately after the ‘last straw’ incident would have been detrimental to students at the university, and that was one of the reasons he had waited.

In addition, during the delay, the Claimant’s solicitor had been negotiating with the employer in an attempt to resolve the issues. The Employment Appeal Tribunal felt that the Tribunal had failed to properly consider this as evidence that the Claimant had not affirmed his contract, but instead was allowing the employer one last opportunity to ‘put things right’ prior to resigning.

The Employment Appeal Tribunal was also critical of the Employment Tribunal for focusing too much on things that hadn’t happened, as opposed to things that had happened. It felt it was relevant that the period of the delay was at partly the university summer holidays.


It is clear from the case that there is not a set amount of time between a fundamental breach or ‘last straw’ incident and an employee’s resignation which will guarantee that a contract of employment will or won’t be affirmed.

Whilst the amount of time that has passed will be an important factor to consider in determining whether affirmation has taken place, the specific circumstances of the case will always need to be taken into account in order to determine the length of time that is reasonable.

If you would like assistance with a potential constructive dismissal case, please contact any member of our Employment Team.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.