Chindove v William Morrisons Supermarket Plc

Whether an employee has affirmed a repudiatory breach of contract is determined by conduct in its full context, not by elapsed time alone. There is no automatic period after which the right to resign is lost. Continuing to work may evidence affirmation, but absence from work through sickness materially affects that inference.

For limitation under Equality Act 2010, an Employment Tribunal must determine a properly raised contention that discriminatory conduct formed a continuing state of affairs. Grievance handling may form part of conduct extending over a period only where it was itself discriminatory. It is a factual question whether the conduct was influenced by race.

The claimant resigned from his employment after incidents of racial harassment by a fellow employee and alleged inadequate handling of his complaints by management. The Employment Tribunal found fundamental breaches of contract but dismissed the constructive-dismissal claim, holding that the claimant had waited about six weeks after the last mistreatment and had affirmed the contract. It also dismissed the race-discrimination claim as out of time, declining to extend time on a just and equitable basis.

The claimant appealed. He contended that the Tribunal had failed to decide whether the alleged discriminatory treatment, including the handling of his complaints, was conduct extending over a period. He also challenged the conclusion that he had delayed too long before resigning.

1. Appeals allowed. The Tribunal failed to determine the claimant’s properly raised case that the employer’s conduct, including the handling of his complaints, was a continuing discriminatory state of affairs for the purposes of section 123(3)(a) of the Equality Act 2010. That omission was an error of law. It was necessary to decide whether the conduct was influenced, consciously or unconsciously, by race and, viewed overall, formed a continuing state of affairs as described in [2003] IRLR 95.

2. The Tribunal also gave inadequate reasons for rejecting constructive dismissal. Although the employee must elect within a reasonable time whether to accept a repudiatory breach, affirmation is essentially a question of conduct, not time in isolation. There is no automatic time limit. Continuing to work will commonly support an inference of affirmation, but the inference is much weaker where the employee is absent through sickness. The Tribunal did not identify the applicable law or the facts and reasoning by which it concluded that six weeks amounted to affirmation.

3. The Tribunal was required by rule 30(6) to identify the issues, make relevant findings, state the applicable law, and explain its application. Its failure to address the continuing-conduct issue and its over-concise treatment of the constructive-dismissal issue did not meet those requirements.

4. The just-and-equitable extension decision was not reopened. It will be immaterial if, on remittal, the race-discrimination claim is found to be in time because the conduct extended over a period.

5. The matters remitted were limited to affirmation of the contract and whether there was a continuing discriminatory course of conduct. Applying the remittal considerations in [2004] IRLR 763, the case was remitted for rehearing before a fresh Employment Tribunal.

• Employment Appeal Tribunal: Allowed the claimant’s appeals and remitted limited issues to a fresh Employment Tribunal.
• Employment Tribunal, Liverpool: Dismissed claims for constructive unfair dismissal and race discrimination, and subsequently refused a review. The original Tribunal decision has no citation stated in the judgment.