Adjei-Frempong v Howard Frank Ltd

Whether an employee has affirmed an employer’s repudiatory breach is a fact-sensitive question of conduct and context, not one governed by an automatic time limit. Continuing to work may support an inference of affirmation, but the tribunal must assess the employee’s circumstances, including any period of sickness absence, the opportunity for reflection, length of service, and whether the employee was awaiting a promised response or clarification from the employer.

Conduct during sick leave has materially less force as evidence of affirmation than conduct while the employee is attending work. A tribunal errs if it fails to engage with relevant contextual matters before finding that a fundamental breach has been affirmed.

The Claimant resigned after the Respondent unilaterally reduced his duties. The Employment Tribunal found that the reduction was a fundamental and repudiatory breach, but held that he had affirmed the contract by working without objection and could not establish constructive dismissal.

He appealed, contending first that the Tribunal had wrongly found that he had made no earlier objection. Secondly, he contended that the Tribunal had wrongly assessed affirmation, particularly because he had worked the reduced duties for only ten days, was then absent with stress-related ill-health, and was awaiting written confirmation of the outcome of a meeting.

The central issue was whether the Tribunal had lawfully concluded that the Claimant had affirmed the Respondent’s repudiatory breach.

1. Appeal allowed. The Employment Tribunal was entitled, on the material before it, to find that the Claimant had not made an express objection to the altered duties before his resignation. That finding was not perverse.

2. The Tribunal’s conclusion that the Claimant had affirmed the repudiatory breach was nevertheless unsafe. Affirmation in an employment contract depends upon conduct assessed in its full factual context. It is not determined by delay alone.

3. The Tribunal’s reasoning appeared to treat the whole period from 17 January to 3 March 2014 alike. It did not show that it had distinguished between the ten working days during which the Claimant performed the reduced duties and the subsequent period when he was absent through stress-related ill-health. Under Chindove, absence through sickness has substantially less evidential force in implying affirmation than continuing attendance at work.

4. The Tribunal also failed adequately to address the Claimant’s evidence that he was awaiting the promised written outcome of the 21 January meeting. The Respondent had not told him that it would withhold that record. Further, the conclusions relied on by the Tribunal were from the Respondent’s internal discussions after the meeting and had not been communicated to the Claimant. Those matters could explain his failure expressly to object.

5. Nor did the reasoning show that the Tribunal had allowed for the period of reflection which an employee may reasonably need before deciding whether to resign following a repudiatory breach. The affirmation issue was remitted to the same Employment Tribunal for fresh consideration. The Tribunal’s other findings remained undisturbed.

• Employment Appeal Tribunal: appeal allowed and the issue of affirmation remitted to the same Employment Tribunal: [2015] UKEAT 0044_15_2805.
• Watford Employment Tribunal: held that the Claimant had not been constructively dismissed because he had affirmed the Respondent’s repudiatory breach.