Excell Consultancy & Training Service

Constructive Dissmissal: Affirmation

This case surrounds the critical question as to whether a contract of employment has been affirmed in circumstances where a claimant waited three months to resign, followwing a 'last straw' breach by the Respondent.

No, held the EAT in Leaney v Loughborough University.

The Claimant was a university lecturer with over 40 years’ service. A complaint was raised against him by a student which he disputed. On 29 June 2020, he was told that the university could not look at the issue any further. There followed a period of negotiation between solicitors. The Claimant resigned with notice on 28 September 2020, claiming constructive unfair dismissal.

The Claimant relied on the notification he had received on 29 June 2020 as the ‘last straw’. The tribunal held that he had affirmed the contract of employment during the three months between 29 June, and his resignation on 28 September 2020.

The EAT disagreed with the tribunal’s approach and remitted the issue of affirmation for reconsideration, holding:

> Tribunals should not focus too much on the passage of time when considering whether affirmation has taken place. All the surrounding facts and circumstances should be weighed.

>Length of service is a relevant factor in deciding whether the contract has been affirmed where there has been a period of delay. But it is fact sensitive. An employee with long service may reasonably take longer to consider their position (without necessarily having affirmed) before taking the leap away from a secure job, but this needs to be looked at in context in each case.

>A period of negotiation before resignation is relevant. Negotiations could be an employee’s attempt to give the employer the opportunity to ‘put things right’ before resigning. Delay in order to do this may not amount to affirmation.

>The tribunal in this case had focused incorrectly on things that did not happen (the Claimant did not delay his resignation because of student exams and did not state that he was working under protest), which, if they had happened, might have pointed away from affirmation. They should have instead focused on what conduct there had been which might have amounted to affirmation.

Excell Consultancy & Training Service has supported several organisations in 2023 in the public, private and independent sectors to continue on their journey to achieve race equity and inclusion. We worked with colleagues delivering training to an NHS Trust in South Yorkshire. The training was designed to support the Trust's stated aim to support managers and senior managers within the trust to increase awareness, confidence and competence in working towards their aspiration of creating an inclusive culture.

We supported Liverpool School of Tropical Medicine in its effort to transform its organisation and adopt and anti-racist approach in all areas of its work. This involved the delivery of Positive Action training to middle and senior managers across the organisation.. The EA 10 allows organisations to take active measures to improve the position of Black people and other racial minority groups who are disadvantaged in an organisation. However, care must be taken to ensure that such “positive action” measures are lawful; the action must be a proportionate way of addressing:

• under-representation;

• a disadvantage they reasonably think the group has suffered; or

• a different need they have.

The EHRC suggests that employers make any positive action time-limited and keep it under review.

Where a protected group is under-represented at work, an employer that is faced with two or more equally qualified candidates for a job or promotion can choose the one from the under-represented group. The EHRC Code says that this should only happen in a “tie-breaker” situation where two candidates are of equal merit.

An employer who decides to prefer the candidate with the protected characteristic must be able to justify their decision as a proportionate means of achieving the aim of raising participation. And there must be a properly thought-through and demonstrable basis for an employer’s assessment that two candidates are of “equal merit” (Furlong v Chief Constable of Cheshire Police [2019] ET 2405577/18).

ET(Excell training) also supported the work of the Anthony Walker Foundation to deliver race equity to public and private sector organisations such as Merseyside Probation Service, Marks and Spencer's, and Liverpool Football Club.

This week I delivered a Stage 2 Trade Union Representatives course to workplace representatives. I covered the following areas:

> Recognising & Tackling Discrimination in the workplace
>Grievances and Disciplinaries
>Representing Trade Union Members
>Contract of Employment
>Contractual terms
>Breach of Contract
and Negotiations

If you're experiencing any difficulties at work and think you could benefit from some support guidance and advice. Please DM here or email at [email protected] and arrange a consultation.

Warm wishes
Tony Excell

It has been 2 years since the murder of George Floyd in the United States, and the rise of the Black Lives Matter (BLM) which has led to a worldwide movement to demand change.
The momentum built by BLM in the UK has led to several organisations and academic institutions recognising that we live in a society shaped by white privilege and racism. Like for many organisations the death of George Floyd was the catalyst which started a journey towards a better understanding of the history of racism, the inequity it perpetuates today and how it can be dismantled.
If Race Equality is a major driver for transformation and organisational culture change, then Excell Consultancy and Coaching Services would welcome the opportunity to support you on this journey. For further information on how when can help you become a progressive and pro-active organisation towards achieving sustainable change, please contact us here at Excell Training & Consultancy Services or alternatively email us at
[email protected]

Today I would like to talk about the Statutory Right to be Accompanied. Under section 10 of the Employment Rights Act 1999( ERA 99) a worker who is required or invited to attend a disciplinary or grievance hearing has the statutory right to bring a companion. The companion is chosen by the worker and can be:
> A full-time union official (whether or not the union is recognised)

> A certified lay official (someone the union has trained to accompany individuals to hearings); or

> A co-worker sharing the same employer
The right to be accompanied is a day one right. This means that the right is available regardless of length of service.

Under the Acas Code of Practice on Disciplinary and Grievance Procedures, workers have the absolute right to choose who is to accompany them to a formal disciplinary or grievance meeting, as long as their chosen companion falls within one of the above three categories. The Acas Code says that as a matter of good practice, when making their choice, workers should consider “the practicalities of the arrangements”, for instance choosing a suitable and willing companion who is on site, rather than someone from a geographically remote location.

The way the request is made must be “reasonable”. The Acas Code says what is reasonable depends on the circumstances. The request need not be in writing (although this is advisable) or made within a particular timeframe, but the Code recommends that “a worker should provide enough time for the employer to deal with the companion’s attendance at the meeting”, should provide the name of the companion in advance where possible, and confirm whether they are a fellow worker, union official or rep.

To qualify as a disciplinary hearing, a meeting must be capable of resulting in a formal warning or some other action, representing a stage in a disciplinary procedure (London Underground v Ferenc-Batchelor [2003] IRLR 252). Whether a meeting is a disciplinary hearing depends on what happens at the meeting, not what the employer calls it. If it becomes clear during the course of an “investigation” meeting that disciplinary action is being considered, the worker can ask for the meeting to be adjourned (Skiggs v South West Trains Ltd [2005] IRLR 459).

To qualify for the statutory right to be accompanied, a grievance hearing must concern “the performance of a duty by an employer in relation to a worker” (section 13(5), ERA 99).

It is sensible always to ask to be accompanied, even if the meeting does not strictly qualify under the statutory right. Workforce agreements often allow workers to be represented in situations beyond those covered by the statutory right, such as meetings to discuss grievances that do not meet the strict statutory test, redundancy consultation, or redeployment meetings, return to work interviews, disciplinary investigations, sickness absence progress meetings and mediation meetings.

In Stevens v University of Birmingham [2015] EWHC 2300, the High Court ruled that refusing an employee his chosen companion was a fundamental breach of the implied contractual duty of trust and confidence.

If you find yourself subject to disciplinary proceedings by your employer and you're not in a union or aware of your rights. Please get in contact with us by DM or via our email address [email protected]

Today I would like to talk about the often complicated issue of Constructive dismissal. The concept of constructive dismissal is rooted in contract law. If the employer's behaviour is so poor as to be a breach of the contract of employment, the employee is entitled to resign in response and treat themselves as dismissed. For a constructive dismissal claim to succeed, the breach of contract must be fundamental. In other words very serious. Whether there has been a fundamental contract breach is a factual question for a tribunal to decide after considering all the evidence, reading the witness statements and listening to cross-examination. Of course the facts in each case will differ, however some examples included:

- Engaging in Bullying and harassment;
- Issuing a Final warning without investigation;
- Wrongly withholding contractual sick pay ;
- Failing to investigate a grievance properly and adequately
-Unilaterally cutting pay or hours
-Publicly humiliating an employee

In its most obvious form, a constructive dismissal involves the employee resigning and leaving employment on the spot, having told the employer in no uncertain terms why they believe the employment contract has been breached. Indeed, in pure contract law, to remain at work would be an 'affirmation' of the contract and would defeat the claimed constructive dismissal.

The Employment Rights Act modifies the position by still allowing the employee to claim constructive dismissal even if they give notice. It is accepted that they may need financial benefit of some of the notice period or want to remain at work for a short time, for example, to assist a colleague with handover, etc. Crucially though, an employee must not:

- delay too long in their resignation; and
- give ambiguous reasons as to why they are leaving
To do so would mean there is no constructive dismissal.

In the case of Cockram v Air Products plc, [2014] the EAT reminded us that too long a delay in leaving employment, not just a delay in resigning, will defeat the claim. Mr Cockram gave somewhat ambiguous reasons for his resignation ( what he regarded as an unfair grievance decision) but explained that, for financial reasons, he had to work a notice period. However, he gave seven months' notice rather than his contractual three months' notice. On these facts the EAT held that Mr Cockram had affirmed the contract and was no longer able to claim constructive dismissal. ultimately, when an employee shouts, 'I resign' to hang round too long is always perilous.

If you are experiencing problems at work such as bullying and harassment, victimisation discrimination, etc, please contact us. We can offer one to one coaching, mentoring, support and guidance concerning a wide range of employment matters.

The Contract of Employment

Today I would like to talk about the contract of employment. I often say to my students that the contract of employment is the glue which gels the relationship between the employer and the employee. However like all relationships both personal and professional from time to time they breakdown. In the event of such a breakdown in the employment relationship it is important to be aware of your basic legal rights.

The contract of employment is fundamental to the employer and employee relationship because it sets out the terms and conditions for work to be carried out and paid for. Therefore it follows that employees should make sure that they are familiar with those terms and know how to enforce them.

A contract of employment exists as soon as an employee accepts an employer's offer of employment. The terms of the contract can be written or verbal or a combination of both.

There is no legal requirement for a contract of employment to be written. However proving contractual obligations in the absence of a written contract is likely to be more difficult. It is important to note that every employer is legally required to give each employee a written statement of employment particulars giving the main terms and conditions of their employment no later than 2 calendar months after the employee has commenced work.

The employee is entitled to have this statement kept up-to-date when any changes are made. The written statement of particulars is evidence of the terms and conditions of a contract of employment but it does not necessarily constitute a contract. This will be dependent on several factors including if it is the intention of both the employer and employee to bound by the written statement of employment particulars.

If you're a member of recognised trade union in your workplace it is more than likely that your union will negotiate any changes to your terms and conditions, which are common to a group of employees. In such cases all changes will be collectively agreed with trade unions and apply to all staff in that group. This is referred to as a collective agreement.

Where trade unions are not recognised for collective bargaining, whilst the terms and conditions of employment may be common to a group of employees, the contract is defined as an individual contract, because it is not subject to a collective agreement.

A contract of employment is a legally binding agreement between the employer and the employee but it can be a complicated and is often characterised by an imbalance in power between the parties.

If you have a contractual issue with your employer and do not have access to a Trade Union please contact me to see if I can help.

Today I would like to talk about the four different forms of discrimination. Discrimination law is found in the Equality Act 2010 (EA10). The EA10 lists nine "protected characteristics": age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; s*x; and s*xual orientation. The broad aim of the EA10 is to outlaw less favourable treatment that takes place because of one of these protected characteristics.

Discrimination can take one of four different forms.

Direct discrimination:
This is where because of a protected characteristic, a person treats another person less favourably than they treat or would treat others. Direct discrimination can include "Associative discrimination", where a person suffers less favourable treatment because for example, they have a disabled child. Direct discrimination also extends to "Perception discrimination", where a person suffers less favourable treatment because of a mistaken belief that they have a protected characteristic, for example, less favourable treatment because of a mistaken belief that someone is gay.

Indirect discrimination:
This may occur when an employer applies an apparently neutral provision, criterion or practice(PCP) which puts workers sharing a protected characteristic at a particular disadvantage. Employers may be able to justify rules that have this effect, by showing that they are a reasonable way of achieving a lawful aim.

Victimisation:
This where an employer treats someone badly because they have done a 'protected act' This law aims to protect someone who suffers as a result, for example, of a complaint about discrimination having been made or for bringing discrimination proceedings.

Harassment:
This is where someone suffers unwanted conduct because of a "protected characteristic", with the purpose or effect of violating that person's dignity or creating an "intimidating, hostile, degrading, humiliating or offensive environment for them. The word 'unwanted' means 'unwelcome' or 'uninvited'. It is not necessary for the person to say that they object to the behaviour for it to be unwanted.

In the case of disability, the EA10 includes two further legal rights for advocates to draw on:

The employer's duty to make reasonable adjustments where a provision, criterion or practice puts a disabled person at a substantial disadvantage when compared with a non-disabled person; and the duty not to treat a disabled person unfavourably because of something arising as a consequence of their disability. There is a defence if the employer can show that the treatment is a proportionate means of achieving a legitimate aim.

An employer will not be liable for discrimination arising from disability or for a failure to make reasonable adjustments, if it didn't know or could not reasonably have known about the disability.

It is worth noting that across all equality strands, the Public Sector Equality Duty(PSED) requires public authorities to have due regard, when exercising their functions, to the need to eliminate discrimination, advance equality of opportunity and foster good relations.

If you would like any further information concerning any form discrimination please inbox me to see how I maybe able to help.

Anyone who has experienced discrimination at the workplace will be well aware that there is very rarely a smoking gun! Instead discrimination is often covert and can manifest in behaviour and conduct which is experienced by the victim over a protracted period. In circumstances where the employer fails to offer a reasonable for the discrimination. The Employment Tribunal is entitled to draw an inference of for example, race in the absence of any other plausible explanation for the discrimination.

The recent case of Efobi v Royal Mail Group Ltd UKEAT/0203/16 has clarified that the claimant does not bear an initial burden of proof in discrimination cases. The Equality Act 2010 prohibits unlawful discrimination. When assessing whether discrimination has taken place, a tribunal is bound to consider the provisions of section 136, which sets out the applicable burden of proof. The settled wisdom for years in discrimination claims was that there was a burden on the claimant to prove a prima facie case (or show the primary facts) of discrimination before the burden "shifted" to the Respondent to prove that it did not commit the act of discrimination. The case of Efobi has turned this on its head.

The burden of proof provisions apply equally to disability discrimination claims as they do claims of race( or any other protected characteristic) so this is a case of potential importance to people with mental health problems who are victims of discrimination. Efobi means that claimants no longer have to convince the Employment Tribunal(ET) of "primary facts" of discrimination before the burden shifts to the employer to show that it did not discriminate.

Rather, the ET should consider all the evidence from all sources(including the employer's explanations or lack of them) at the of the hearing to decide there are facts from which they can infer discrimination. This will make it easier for people claiming to prove their cases, especially if the Respondent does not provide an explanation of the discriminatory behaviour or call witnesses to deal with specific allegations.

I recently successfully ran this argument when I was called to give evidence as an expert witness at a recent Appeal hearing of race discrimination against a black female employee of a Local government organisation. I was able to show on the facts that in the absence of any explanation provided by the employer for the discriminatory treatment that it was more likely than not that the employee concerned had suffered race discrimination.

If you would like advice and/or support concerning discrimination in the workplace please contact me for further information about how I maybe able to help.