Mari v Reuters Ltd

In a constructive-dismissal claim, affirmation following an employer’s assumed repudiatory breach is assessed on all the circumstances. Mere delay does not itself affirm the contract, although prolonged delay may support that inference. Conduct consistent only with continuation of the contract, including exercising contractual rights, may amount to affirmation.

No separate affirmation test applies merely because the alleged breach is said to amount to a demotion. The significance of accepting sick pay is fact-sensitive. It will not alone affirm the contract where the employee continues to protest for a limited period, but it may contribute to affirmation in a different factual setting.

The claimant appealed from an Employment Tribunal decision dismissing claims for sex discrimination, constructive unfair dismissal and notice pay. The Tribunal determined affirmation as a preliminary issue. It assumed, in the claimant’s favour, that the respondent had committed a fundamental breach of contract.

The claimant had remained absent through illness for about 19 months before resigning. During that period she accepted sick pay, sought access to work systems, and made requests connected with continuing employment and benefits. The Tribunal found that she had affirmed the contract and rejected her contention that illness had made her unable to resign.

The appeal concerned the correct approach to affirmation, including where the alleged breach was said to be an effective demotion, and whether the Tribunal’s finding on the claimant’s ability to resign was perverse.

1. Appeal dismissed. The Tribunal did not err in law in finding affirmation. It had directed itself in accordance with the principles in WE Cox Toner (International) Limited v Crook [1981] ICR 823 and Hadji v St Luke’s Plymouth [2013] UKEAT/0095/12.

2. Where an employer commits a repudiatory breach, the employee may affirm the contract or accept the repudiation. Delay alone is insufficient, but prolonged delay may evidence implied affirmation. The inquiry is fact-sensitive and considers all conduct, including conduct consistent only with continuation of the contract. Employment contracts require a more liberal application of that doctrine than ordinary commercial contracts.

3. The alleged assignment of work below the claimant’s expertise did not require a distinct test of affirmation. Bashir and El-Hoshi concerned proposed unilateral variations and whether the employees had accepted a new contractual regime. The present case concerned alleged fundamental breaches, including breach of trust and confidence, not a variation accepted by the claimant. The ordinary principles therefore applied.

4. Acceptance of sick pay is not invariably neutral. Its significance depends on the circumstances. An employee who receives sick pay for a limited period while protesting against the employer’s conduct is not thereby taken to have affirmed the contract. It may nevertheless be a factor contributing to affirmation where considered with the length of delay and other conduct.

5. The perversity ground failed. There was ample evidence on which the Tribunal could find that the claimant was able to resign despite her illness. It was entitled to assess the expert report alongside the fuller evidence of her medical treatment, correspondence, activities and ability to obtain advice.

The judge added that trying affirmation as a preliminary issue should be exceptional. Ordinarily, a full hearing should determine all issues.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s finding that the claimant had affirmed the contract was upheld.
• Employment Tribunal, East London Hearing Centre: Dismissed the claims for sex discrimination, constructive unfair dismissal and notice pay after determining affirmation as a preliminary issue.