Fereday v South Staffordshire NHS Primary Care Trust

Affirmation of an employment contract may be express or implied. Mere delay does not itself amount to affirmation, but prolonged delay may provide evidence of implied affirmation when considered with the surrounding circumstances. Conduct calling for further performance of the contract, such as claiming and accepting contractual sick pay, may also be inconsistent with an election to accept repudiation.

An appellate tribunal should read an Employment Tribunal’s reasons fairly and as a whole. It should avoid a pernickety or overly technical critique of language where the tribunal applied the correct substance of the law.

The claimant alleged that her employer had fundamentally breached the implied term of mutual trust and confidence and resigned in March 2009, claiming constructive unfair dismissal. The Employment Tribunal accepted that certain conduct amounted to fundamental breaches but held that the claimant had affirmed the contract.

The claimant appealed against that conclusion, alleging that the tribunal had equated delay with affirmation, failed to consider relevant circumstances, and relied on irrelevant matters occurring while her grievance remained pending. The central issue was whether the tribunal was entitled to find affirmation from the claimant’s delay and conduct.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the claimant had affirmed her contract and therefore could not rely on the employer’s repudiatory breaches to establish constructive dismissal.
2. Affirmation may be express or implied. Mere delay, without more, does not constitute affirmation, but prolonged delay may be evidence of implied affirmation. Affirmation may also arise where the innocent party calls on the other party to perform the contract, or acts in a way only consistent with the contract continuing. The Tribunal correctly applied W E Cox Toner (International) Ltd v Crook [1981] IRLR 447.
3. The claimant waited nearly six weeks after the final grievance decision before resigning. The Employment Tribunal was entitled to assess that delay in the light of the earlier history and the claimant’s continuing expectation that the respondent would perform its contractual obligation to pay sick pay.
4. The fact that the claimant was absent from work did not prevent affirmation. Claiming and accepting sickness pay was conduct consistent with the continued existence of the employment contract. The approach was consistent with Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27.
5. The Employment Tribunal was entitled to take account of the claimant’s earlier requests concerning sick pay and her job title. Those matters were secondary to the post-grievance delay and were relevant evidence of conduct under the contract.
6. The absence of the phrase unequivocal act was not fatal. The Tribunal’s reasoning had to be read fairly and as a whole, without over-analysis or a pernickety focus on particular expressions, applying Fuller v London Borough of Brent [2011] IRLR 414.

• Employment Tribunal, Birmingham: by a decision dated 1 July 2010, accepted that the employer had committed fundamental breaches but dismissed the constructive dismissal claim because the claimant had affirmed the contract.
• Employment Appeal Tribunal: dismissed the appeal and upheld the finding of affirmation.