EAT clarifies affirmation principle in constructive dismissal case: Leaney v Loughborough University

Citation: [2023] EAT 155
Judgment on


In the case of Dr. Paul Leaney v Loughborough University [2023] EAT 155, the Employment Appeal Tribunal (EAT) examined the matter of constructive unfair dismissal, focusing particularly on the principle of affirmation within employment law. This principle plays a crucial role when an employee resigns, claiming that the employer’s breach of contract has destroyed trust and confidence. The EAT’s analysis centered on whether the claimant had affirmed the contract by delaying his resignation, the effect of his actions or inactions during that delay, and the consequent implications for his claim of unfair dismissal.

Key Facts

Dr. Paul Leaney, having worked with Loughborough University for over 40 years, resigned after a series of events culminated in what he believed to be a breach of trust and confidence by the university. The tribunal initially found Leaney’s last straw act to be on 29 June 2020 but dismissed his claim on the premise that Leaney had affirmed the contract by not resigning until 28 September 2020. Leaney appealed, alleging the tribunal erred in its approach to the affirmation.

The legal principles central to this case revolve around the concepts of “affirmation” and “constructive dismissal”.

Constructive Dismissal

Under UK law, constructive dismissal occurs when an employee resigns due to their employer’s conduct, which is deemed sufficiently serious to amount to a repudiatory breach of the employment contract. This conduct must fundamentally breach an implied term of the contract, such as the duty of mutual trust and confidence.

Affirmation of Contract

Affirmation occurs when an employee, being aware of the employer’s breach, chooses to treat the contract as continuing. This intention can be expressly stated or implied through continued work. Once the contract is affirmed, the employee loses the right to later claim constructive dismissal based on that breach. However, affirmation is not dependant on time alone but on the employee’s conduct during the delay before resignation.

The EAT examined several cases to define the principles of affirmation, including Western Excavating (ECC) Ltd v Sharp, Buckland v Bournemouth University, and Chindove v William Morrisons Supermarkets Plc. It was highlighted that, while delay in resigning does not itself constitute affirmation, the nature of the work being carried out and the employee’s actions during that period might imply so. The court must carefully investigate whether a delay in resigning equated to an express or implied affirmation.

Other Considerations

The EAT also considered external circumstances, such as length of service, negotiations between the parties, sickness absence, summer holidays, and their impact on the decision-making process of affirmation. It was argued that, especially for someone with long service, resigning entails significant upheaval, and therefore, they might need more time to make such a decision. Moreover, negotiations or grievance procedures in progress should be seen as an attempt to resolve the issue, rather than affirmation of the contract.


The EAT, disapproving the tribunal’s analysis which focused primarily on the length of delay, held that the tribunal had erred in its approach to affirmation. EAT highlighted the tribunal’s failure to properly consider the content and impact of negotiations with the university, the claimant’s state of sickness leading up to the resignation, the summer holiday period, and the claimant’s long service with the university. The matter was remitted back to the original tribunal for fresh consideration on the affirmation question, rejecting the request to appoint a different judge for parts of the remaining issues.


The EAT’s ruling in Leaney v Loughborough University clarifies the nuanced understanding of affirmation within employment law, emphasizing that mere delay in resignation does not automatically suggest affirmation. Affirmation must be deduced from an employee’s conduct or other significant events during the delay period. The EAT’s judgment also underscores the need for tribunals to scrutinize all relevant factors and contextual considerations that could influence an employee’s decision to resign. This decision serves as guidance for legal professionals to comprehend the complexities surrounding unfair dismissal claims and the risks of implied affirmation.