A LEANEY-ENT DECISION?

The EAT has reached a rather lenient decision in the case of Leaney v Loughborough University. 
 
The case involved an academic who had worked for Loughborough University for over 40 years. From January 2019 until June 2020, Leaney raised various concerns with his employer about alleged breaches of contract. He then instructed solicitors who entered into negotiations with the University on his behalf. When those negotiations broke down some three months later (in September 2020), Leaney resigned, citing the breakdown in negotiations as the last straw.
 
He claimed unfair constructive dismissal. However, a tribunal at first instance dismissed his claim: it held that he had been aware of an alleged fundamental breakdown in trust and confidence by June 2020, but had then waited for three months before resigning; the tribunal considered that, as a result he had affirmed his contract and thereby waived the employer’s breach.
 
Leaney appealed, with the only issue before the EAT being whether he had affirmed the contract.
 
The EAT upheld Leaney’s appeal, finding that, whilst delay is one factor which may point to a contract being affirmed, the position needs to be considered in the round. As such, the EAT considered that the tribunal should have taken into account Leaney’s 40 years’ service (which would have meant that resigning was a weighty decision and not one to be rushed), the fact that he considered his resignation during the quieter summer period (when his work was not so significant as to be an obvious affirmation), and the fact that he hoped that negotiations over the summer may resolve the dispute.
 
The case has been remitted to the same tribunal to be reconsidered and it seems highly likely that a finding will be made in Leaney’s favour.
 
This case shows the importance of considering an alleged affirmation of contract in the round, because a delay in resigning will not always be enough on its own to defeat a constructive dismissal claim. In this context, it is important to note that, whilst there was no evidence put before the tribunal (or the EAT) regarding the content of the negotiations (presumably because the without prejudice rule applied) – to the extent that the date of the last straw was held to be June 2020 and not the later date when negotiations broke down - the fact of the negotiations was considered by the EAT as part of its decision making. This is arguably surprising, although we can only assume that the tribunal and the parties were satisfied that, because the content of the negotiations was not revealed, neither party was prejudiced by the fact of the negotiations being referred.
 
So, what can we learn from this case? It perhaps reinforces the uncertainty over whether an employee has genuinely resigned in response to an employer’s fundamental breach of contract, or whether they have waived the breach. Certainly, one weapon in the employer’s armoury when defending a constructive dismissal claim has been rendered potentially less potent.