Hadji v St Luke's Plymouth

An employee entitled to resign for a fundamental breach must elect whether to do so within a reasonable time. Affirmation cannot arise from delay alone. However, prolonged delay and conduct objectively indicating a wish to preserve or resume the employment relationship may support an inference of implied affirmation.

There is no fixed period for election. The question is fact sensitive and is for the Employment Tribunal. An appellate court will not overturn a tribunal's permissible factual interpretation merely because another interpretation was available.

The claimant alleged constructive unfair dismissal after her employer's handling of workplace matters was found by the Employment Tribunal to amount cumulatively to a fundamental breach of contract. The final breach occurred on 15 February 2011.

Afterwards, the claimant remained absent with stress. At a meeting on 23 March she was offered the alternatives of returning to her existing role, considering internal vacancies, or resigning. In an email of 26 May she referred to support intended to salvage her employment and requested details of internal vacancies. She resigned on 8 June.

The Employment Tribunal held that the email and the delay amounted to affirmation, and dismissed the claim. The claimant appealed, principally contending that the email was misconstrued and that delay could not establish affirmation in the circumstances.

1. Appeal dismissed. It was open to the Employment Tribunal to find that the claimant had affirmed her contract of employment before resigning. Its conclusion was neither erroneous in law nor perverse.

2. The applicable principles were that an employee who relies on a fundamental breach must decide whether to resign soon afterwards. Mere delay does not by itself establish affirmation. However, a tribunal may infer implied affirmation from prolonged delay together with conduct showing an intention to continue the contractual relationship. The employee's request that the employer perform contractual obligations, or other conduct indicating continuation, may be material. There is no fixed time limit and the inquiry is fact sensitive.

3. The Tribunal was entitled to construe the email of 26 May, in its full context, as expressing a hope that assistance and a stress-control course could enable the claimant to salvage her employment. Her request for notifications of internal vacancies was consistent with that intention. The subsequent evidence did not undermine that permissible interpretation.

4. The claimant did not meet the high threshold for perversity stated in Yeboah v Crofton, [2002] IRLR 637. The Tribunal's conclusion was one a reasonable tribunal could reach.

5. Although unnecessary to the disposal of the appeal, the EAT also held that absence from work, lack of pay and ill health did not prevent an inference of affirmation. The claimant had sought internal vacancies, three months elapsed between the final breach and resignation, and there was no medical evidence that her ill health prevented her from choosing between the available options.

• Employment Appeal Tribunal: dismissed the claimant's appeal: [2013] UKEAT 95_12_207.
• Employment Tribunal, Plymouth: held that the employer had committed fundamental breaches but that the claimant affirmed the contract before resigning, and dismissed the constructive unfair dismissal claim. Its judgment was sent to the parties on 27 October 2011.