Asghar & Co Solicitors v Habib (Unfair Dismissal)

In a constructive-dismissal case, an Employment Tribunal must determine the alleged repudiatory breaches within the issues which the parties were required to meet. It may nevertheless uphold the claim if its alternative findings, confined to the pleaded matters, independently establish a cumulative breach of the implied term of trust and confidence.

Affirmation is a contextual question of conduct, not one governed by a fixed period of delay. Where the employee relies on a last straw at an earlier date, the Tribunal must assess the entire subsequent chronology, including communications, sick notes and claims for sick pay. A failure to demonstrate that assessment makes the conclusion on affirmation unsafe.

The Claimant, a long-serving accounts clerk employed by a solicitors’ firm, alleged that false allegations, a lock change and related conduct entitled him to resign and claim constructive unfair dismissal. He resigned on 7 October 2014 after a period of sickness absence and communications with the Respondent.

The Watford Employment Tribunal upheld the constructive unfair dismissal claim. It found, among other matters, that an email of 14 August 2014 was a repudiatory breach and the final straw. In the alternative, it found that the matters in the agreed list of issues cumulatively breached the implied term of trust and confidence. It also found that the Claimant had not affirmed the contract.

The Respondent appealed. The central issue was whether the Tribunal had impermissibly relied on an unpleaded later incident and, if so, whether its reasoning on affirmation adequately addressed the full period from the pleaded last straw.

1. Appeal allowed in part and remitted. The Employment Tribunal erred by treating the Respondent’s email of 14 August 2014 as an alleged breach and last straw. The Claimant’s case, as clarified at the preliminary hearing, was limited to matters up to the week ending 25 July 2014. The Respondent was entitled to have the case determined within those issues.

2. That error did not undermine the Tribunal’s conclusion that there had been a repudiatory breach. Its alternative finding was that the pleaded incidents cumulatively amounted to a breach of the implied term of trust and confidence even without the 14 August email. That alternative finding answered the first ground of appeal.

3. The Tribunal’s conclusion that the Claimant had not affirmed the contract was unsafe. Although affirmation depends on context rather than a strict time limit, the Tribunal had to assess the Claimant’s conduct throughout the full period following the last straw on which he relied. Its reasons focused on sick notes after 14 August and did not adequately engage with earlier communications, including the Claimant’s indication that he would respond when well, his sick notes and his requests for payment.

4. Those matters could have supported either conclusion on affirmation. The Tribunal was entitled to take account of the serious consequences of resignation for a long-serving employee and of the fact that he was absent through sickness. It was not, however, always necessary to make a specific finding about the nature of the sickness. The question was whether the whole factual context showed an election to continue the employment contract.

5. The case was remitted for reconsideration of affirmation only. If possible, it should return to the same Employment Judge, whose extensive findings on the remaining issues were unaffected; otherwise it should be allocated to another Judge.

• Employment Appeal Tribunal: Allowed the Respondent’s appeal on the affirmation issue and remitted that issue for reconsideration.
• Watford Employment Tribunal: Upheld the Claimant’s complaint of constructive unfair dismissal in a judgment sent to the parties on 25 April 2016.