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Passage of time

Employment Law Review Weekly Issue 855 01 February 2024


In complaints of constructive unfair dismissal, claimants have to show that they did not delay too long between the date of the alleged “last straw” and the date of resignation. In Leaney v Loughborough University, the EAT held that although delay is an important factor for tribunals to consider, the passage of time is not the only one to take into account.

Basic facts

As well as his teaching duties in the school of engineering, Mr Leaney (who had worked for the university for 40 years) was a warden in the halls of residence. After an incident involving a student in November 2018, concerns were raised about how he had handled the matter.

Although an informal disciplinary investigation in January 2019 concluded that there was no case to answer, Mr Leaney’s manager said he wanted to informally discuss some concerns he had. This prompted Mr Leaney to lodge a grievance which was unsuccessful.

In June 2019 he resigned from the position of warden whilst remaining in his teaching position. In her letter accepting his resignation, the HR director raised historical concerns about his approach to the role. He asked for evidence of these concerns but, after various meetings, he was told that the time had come to end the dialogue. On 29 June 2020 he tried to raise the matter with his manager in the school of engineering, Professor Conway, who said it did not come within his remit.

Mr Leaney contacted solicitors on 1 July 2020, who initiated negotiations with the university, although nothing had come of them by early September. Mr Leaney was signed off sick on 10 September. He resigned from his teaching position on 28 September and claimed unfair constructive dismissal alleging a cumulative breach of the implied duty of trust and confidence, the last straw being the end of negotiations which he said was 7 September.

Tribunal decision

The tribunal dismissed his claim, concluding that the date of the last straw was his meeting with Professor Conway on 29 June. Given the delay between the date of the last straw (29 June) and the date of his resignation (28 September), the tribunal found he had affirmed the contract and could not, therefore, claim unfair constructive dismissal.

Mr Leaney appealed arguing that the tribunal had focused too much on the length of time that had passed between the last straw and the date of resignation, whilst ignoring what had happened in the intervening period.  He also argued that the tribunal had ignored his long service with the university.

EAT decision

Allowing the appeal, the EAT held that “it is not the passage of time, as such, prior to resignation that gives rise to affirmation, but conduct or other circumstances occurring in that period from which affirmation may be inferred”.

In this case, the tribunal had not indicated whether Mr Leaney was doing work during those three months which, in and of itself, constituted affirmation. Indeed, the EAT pointed out that the tribunal did not have any evidence about what he was doing, although it had inferred that “he must have been doing something”.

As such it concluded that the tribunal had relied too heavily on the “pure” fact of delay, without considering other relevant factors. These included the fact that the period coincided with the summer holidays during which he was not doing any significant work; the fact that there were ongoing negotiations that had attempted a resolution; the fact that he then went off sick; and finally the fact of his very long service which meant he needed to take “some appreciable time” to decide whether to resign.

The EAT remitted the matter to the same tribunal for reconsideration.


This case acts as a reminder that implied affirmation technically derives from an employee’s conduct and the wider circumstances of a situation, rather than a mere passage of time.  This case also suggests that longer serving employees will be permitted more time to decide whether to resign before they are found to have affirmed a breach.  This however was a fact sensitive case and ultimately it should not distract from the fact that when an employee wants to claim constructive unfair dismissal, they will best protect their legal position by resigning promptly.