Constructive Dismissal: when lengthy delay may not be fatal to a claim
Posted on 8th March 2024 at 13:42
“I’ve been constructively dismissed.” “OK, when was the fundamental breach, or the last straw?” “Er…three months ago.” “And you’ve been working normally ever since?” “Well…”
Not the most promising of starts to a constructive dismissal claim, we may think, when one of the key principles – apart from leaving the job in response to the breach and making it clear that this is the case – is not to delay unduly in doing so. Otherwise, the employment contract may be
deemed affirmed.
And yet there are grey areas. What if the fundamental breach occurs just before a prolonged period without duties, such as an academic holiday? Or if it is immediately followed by negotiations upon how it might be resolved? Or by a lengthy sickness absence? And how far might an employee’s considerable length of service be a factor?
All of this came into focus in Leaney v Loughborough University. The last straw event occurred right at the end of the summer term. There were 10 weeks of negotiations immediately afterwards, back to back with 3 weeks of sickness absence before Mr Leaney resigned. He had 40 years’ worth of service behind him. This all convinced the Employment Appeal Tribunal to decide that the delay was not fatal to the claim. The original tribunal decision to dismiss his claim was overturned and remitted for a fresh hearing.
One interesting phrase within the decision was “working under protest”. Mr Leaney had never used that phrase. However, the overall pattern of conduct was evidently consistent with its sentiments.
These disputes will always be fact sensitive. A discreet word or two, part way through what might otherwise be considered water under the bridge or dust under the carpet, could make all the difference.
Are you in the middle of a grievance or something worse? Need to know whether it strikes at the heart of the employment relationship – or how to make sure it does? We can help. Contact David Cooper on 0121 325 5402 or via dmc@coxcooper.co.uk .
Tagged as: constructive dismissal, working under protest
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