UK Employment Law Coffee Break | Constructive dismissal, paternity leave, and hidden disabilities

Constructive dismissal and delayed resignation

The Employment Appeal Tribunal (EAT) has again been addressing the issue of whether an employee had affirmed their employment contract and therefore was unable to claim constructive dismissal.

In the November 2023 Coffee Break we looked at an earlier EAT decision where the employee's engagement in the employer's grievance procedure did not affirm their contract. In this more recent EAT decision, it considered whether a three month delay between the "last straw" incident and the employee's resignation had the effect of affirming the contract following the breach, meaning the employee was not constructively dismissed.

A complaint was made against the employee by a student at the university where he worked. On 29 June 2020, the university informed the employee it would not consider the issue further. The employee resigned on 28 September 2020 claiming constructive unfair dismissal, alleging a cumulative breach of the implied duty of trust and confidence.

The Employment Tribunal dismissed his claim on the basis that, between the date of the last matter that could potentially be relied upon as a last straw, and the date of resignation, he had affirmed the contract.

The EAT disagreed, stating that the "mere delay in communicating a decision to accept the breach as bringing the contract to an end will not, in the absence of something amounting to express or implied affirmation, amount in itself to affirmation"; but that "the ongoing and dynamic nature of the employment relationship means that a prolonged or significant delay may give rise to an implied affirmation, because of what occurred during that period". Remitting the case for reconsideration, it made the following helpful observations:

• It is not the passage of time prior to resignation that gives rise to affirmation, but conduct or other circumstances occurring in that period from which affirmation may be inferred.
• The tribunal needed to focus on the question of what conduct there had been during the relevant period that might or might not have amounted to an express or implied communication of affirmation – in this case it had simply made a number of points about things that did not happen which, if they had, might have pointed away from affirmation.
• An employee with long service might reasonably need longer to make up his mind whether to resign, but this is fact sensitive. A tribunal needs to consider the nature of what is at stake for the particular employee and the practical implications for that employee of the decision whether or not to resign. Lengthy service might provide the context for other more specific factors, such as whether the employee would be abandoning a secure and stable job that would be difficult to replace, or whether resigning would entail the loss of valuable benefits that had been built up over time, and would be hard to replicate.
• Some consideration needed to be given to whether the employee had been working on while he allowed the employer the opportunity to try to address his concerns through negotiations, before deciding whether to resign (although here the employee did not say he was working under protest). Where an employee postpones resigning in order to pursue a contractual grievance procedure (or other negotiations) which might lead to a resolution of their concern, that will generally not amount to an affirmation.

Recent case law has highlighted that a delay in resigning following an alleged fundamental breach of contract will not necessarily mean an employee has affirmed their contract of employment and employers should not assume this is the case. A delay in resigning after a constructive dismissal does not automatically mean that the employee has affirmed their contract. Taking time to seek legal advice, pursuing an internal grievance procedure or other negotiation, the employee's length of service and financial risk are all some of the reasons an employee might take time to resign without it leading to an affirmation. Constructive dismissal claims should be carefully assessed on their particular facts before any conclusions are reached about the validity and merits of the employee's case.

Upcoming changes to statutory paternity leave

The draft Paternity Leave (Amendment) Regulations 2024 have been laid before Parliament and are due to come into force on 8 March 2024. The regulations will introduce a number of changes to statutory paternity leave that will take effect in relation to children whose expected week of childbirth is after 6 April 2024 and children whose expected date of placement for adoption, or expected date of entry into Great Britain for adoption, is on or after 6 April 2024.

The changes include:

• Providing for fathers and partners to take their leave and pay at any point in the first year after the birth or adoption of their child (this is currently restricted to the first eight weeks after birth/adoption).
• Providing for fathers and partners to take their leave and pay as two non-consecutive blocks of one week, rather than only in one block of either one or two weeks.
• Requiring an employee to give 28 days' notice prior to each period of leave (the notice period is currently 15 weeks before the expected week of childbirth). For adoption, the notice period will stay as within seven days of having received notice of being matched with a child, to reflect the short timescales often involved in adoptions.
• Allowing for variation of notice given, provided 28 days' notice is given of any variation.

These changes will provide families with greater flexibility in balancing their work and childcare. Employers and managers handling requests will need to be aware of the new rules and ensure they are reflected in relevant policies, including paternity leave and adoption leave, and any bonus or other company policies where paternity leave is reflected.

While greater flexibility is being provided for fathers, they can face other financial and workplace constraints when wanting to spend time with their new family member. As part of its considerations for family-friendly leave reforms, the government carried out an evaluation of the shared parental regime but, in its response last year, confirmed that no specific reforms are proposed; therefore despite these latest changes to the paternity leave regime we are unlikely to see any significant immediate change.

Silent struggles: recognising and supporting hidden disabilities in the workplace

Employers are increasing attuned to the impact of disability in the workplace and the measures that can be taken to create an inclusive and supportive environment for all employees. While visible disabilities are often supported, there are many "hidden disabilities" that go unnoticed and the link between these challenges and performance and conduct issues is easily missed.

Employees may be reluctant to divulge hidden disabilities or be unaware that they have a disability for the purposes of the Equality Act 2010. Whatever the reason for their challenges remaining unrecognised, the impact can be significant. It can create legal risks and damage both to the employment relationship and to the employee's own wellbeing.

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