Burden v Stevenage Borough Council

Affirmation of a repudiatory breach and the statutory question whether it was reasonably practicable to present an unfair dismissal claim in time are distinct inquiries. Affirmation cannot be determined by delay alone. Relevant circumstances may include illness, the continuation of a grievance and discussions about possible accommodation.

In discrimination cases, an Employment Tribunal need not reproduce every stage of the Igen v Wong analysis if it has properly determined the reason for the treatment and whether it was gender-related. A discrete incident is not converted into a continuing act merely by evidence of wider policy failures.

The claimant appealed against a majority decision of the Employment Tribunal sitting at Bedford. The Tribunal had held that her constructive unfair dismissal and sex discrimination complaints were out of time. It nevertheless found that she had been dismissed within section 95(1)(c) of the Employment Rights Act 1996 and that the dismissal was unfair, subject to its time-limit conclusion. It rejected the sex discrimination allegations on their merits, apart from finding that a poster constituted less favourable treatment, which it treated as a discrete incident.

The appeal concerned whether the Tribunal had confused affirmation of contract with reasonable practicability, whether its sex discrimination analysis was legally defective, whether the poster formed part of a continuing act, and whether time should have been extended.

1. Constructive dismissal. The appeal succeeded on the unfair dismissal issue. The Tribunal had conflated the common law doctrine of affirmation, sometimes described as waiver, with the statutory exception based on reasonable practicability under section 111 of the Employment Rights Act 1996. They have different components and had to be considered separately.
2. Affirmation could not be resolved by reference to delay alone. The Tribunal should have considered the reasons why the claimant did not resign earlier, including her illness, the progress of the grievance and discussions about whether an accommodation could be reached. The Tribunal’s reasoning did not show that those matters had been properly considered.
3. The constructive dismissal issue was remitted to a differently constituted Employment Tribunal. Evidence could be called concerning the period from early 2007 until the resignation in December 2008, and the Tribunal was directed to decide whether the claimant had affirmed the contract.
4. Sex discrimination. The appeal was dismissed on this issue. Although the Tribunal’s narrative structure would have been improved by closer adherence to the analytical stages in Igen v Wong, those stages were not themselves an independent rule of law. The Tribunal was entitled, in relation to the incidents involving Crawley, Arnold and Keighley, to ask why the conduct occurred and to find gender-neutral explanations.
5. The Tribunal was also entitled to find that the poster was a discrete incident rather than a continuing act. Section 76(6)(b) of the relevant sex discrimination legislation could therefore not extend time. Its approach to the just and equitable discretion was lawful, and prejudice arising from the considerable delay was a permissible consideration.

• Employment Tribunal sitting at Bedford: By a majority, held that the claimant’s complaints were out of time; nevertheless found that there had been a constructive dismissal and that it was unfair, while rejecting the sex discrimination claims on their merits except for the poster incident.
• Employment Appeal Tribunal: Allowed the appeal on constructive dismissal, dismissed it on sex discrimination, and remitted the constructive dismissal issue to a differently constituted Employment Tribunal.