Chindove v Morrison Supermarkets Plc

Affirmation after an employer’s repudiatory breach is a question of the employee’s conduct in its full context. Delay alone does not establish affirmation, and there is no automatic period after which the right to accept the breach is lost.

An employee’s absence through sickness, submission of sick notes and receipt of sick pay may be relevant, but their significance depends on a reasoned assessment of whether they show an election to continue the contract. An Employment Tribunal must explain whether each material matter points towards affirmation, against it, or is neutral, and must give intelligible reasons for its overall conclusion.

The Claimant, a warehouse operative, resigned after findings that the Respondent had committed a repudiatory breach of his employment contract through race-related mistreatment. The original Employment Tribunal held that he had affirmed the contract. An earlier Employment Appeal Tribunal remitted the affirmation issue because the reasons were inadequate.

On remission, a differently constituted Employment Tribunal again found affirmation. It relied on the six-week period before resignation, during which the Claimant was absent through sickness, received sick pay and submitted sick notes, together with comments concerning a possible return to work. The Claimant appealed on the ground that the Tribunal had not adequately analysed those matters or explained its conclusion.

1. The appeal was allowed. The Employment Tribunal had erred in law by aggregating a number of matters and treating them as establishing affirmation without explaining the significance it attached to each.

2. Affirmation is not determined by elapsed time alone. The inquiry is whether the employee, by conduct or communications viewed in context, has elected to continue the contract after the repudiatory breach. The earlier guidance based on Western Excavating Ltd v Sharp [1978] 1 QB 761 remained material: an employee who remains at work may by that conduct affirm, but absence through sickness has substantially less force.

3. The six-week delay, sick leave, sick pay and sick notes could each have pointed towards affirmation, against it, or been neutral. The conditional indication that the Claimant might return to work, and other comments recorded by the Tribunal, likewise required analysis. The Tribunal gave no intelligible explanation of its evaluation of those matters or of the balancing exercise leading to its conclusion.

4. The EAT could not safely determine affirmation itself. It remained open to a properly directed Tribunal, on a proper analysis of the evidence, to find that the Claimant had affirmed. Applying the remittal considerations in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the issue was remitted to a newly constituted Employment Tribunal, particularly given the earlier unequivocal findings and the lapse of time.

• Employment Appeal Tribunal: allowed the appeal and remitted the affirmation issue to a new Employment Tribunal.
• Employment Tribunal (Buzzard Tribunal): on remission from an earlier EAT appeal, dismissed the unfair constructive dismissal claim by finding that the Claimant had affirmed his contract.
• Earlier Employment Appeal Tribunal: remitted the affirmation issue after finding that the first Tribunal had failed to give adequate reasons.