Mr C Okoro v Bidvest Noonan (UK) Ltd: What does the law say about employees who fall asleep at work?
Employee falls asleep at work and is unfairly dismissed; explore lessons for employers on investigations, mitigation, and proportionality.
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Case Study
Key aspects of the law on constructive dismissal were examined in the recent Employment Appeal Tribunal (EAT) case of Dr P Leaney v Loughborough University [2023] EAT 155.
Dr Leaney began employment with Loughborough University in 1979. In November 2028 a disciplinary investigation was held concerning his conduct, but found that there was no formal case to answer. He then raised a grievance against his line manager. In the following two years, he raised subsequent concerns about how the matter had been handled. Between June and September of 2020, negotiations took place via the parties’ solicitors but agreement was not reached by the beginning of the academic year, at which time Dr Leaney went off sick and then resigned.
He brought a claim of unfair constructive dismissal citing the failure to reach agreement as the last straw in a chain of events that – taken together- amounted to a fundamental breach of the implied term of mutual trust & confidence.
In order to establish a successful constructive dismissal complaint, a Claimant must establish (a) that there was a breach (b) that the breach was sufficiently serious (c) that they resigned in response to the breach and (d) that they did not delay in doing so.
At Employment Tribunal (ET) level, Dr Leaney’s claim was dismissed, finding that the last straw event could not have taken place in September (the failure to reach agreement via legal negotiations) but that the last event that could be relied upon happened in June. The ET found that as the Claimant had not indicated that he was working under protest between then and his eventual resignation, he had effectively affirmed the contract. Dr Leaney’s claim therefore failed. He appealed to the EAT.
Case Study
The EAT allowed the appeal, finding that too much attention had been paid to the time that had elapsed rather than what was happening during that time.
The EAT stated that a delay in communicating a decision to resign in response to a breach is not necessarily affirmation. Instead, consideration must be given to what happened in that intervening period. In this case, the University summer holiday coincided with the time period in question.
The EAT also considered that Dr Leaney’s long service (40 plus years) should be weighted against any suggested delay. The existence of negotiations during the period was also deemed relevant, given that the University could have reached agreement with Dr Leaney thus resolving his concerns and avoiding the need to resign.
Each case will of course turn on its own facts, but there are some relevant “lessons” to be learned from this case.
The first of these is that a delay in resigning will not, in itself, defeat a claim for constructive dismissal. Instead, consider what has happened during that period that could explain and mitigate that delay.
Second, beware of employees with lengthy service whose decision to resign may have a more significant impact on their future. In this case, Dr Leaney was considered to be at risk of losing valuable benefits which would be hard to replicate, and the job security he had enjoyed for over four decades was deemed to entitle him to a longer period to decide whether to resign.
Finally, a sickness absence will not necessarily affect the ultimate decision to resign in these circumstances.
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