The Phoenix Academy Trust v Kilroy

An employee who invokes and pursues to conclusion a contractual appeal against dismissal objectively elects to affirm the contract of employment. A stated intention not to return to work does not qualify that election.

That affirmation does not prevent a constructive-dismissal claim founded on a later or continuing cumulative breach of the implied term of trust and confidence. The tribunal must address the five questions identified in Kaur, including whether the conduct after affirmation formed part of a repudiatory cumulative breach.

The employee was summarily dismissed and invoked the employer’s contractual appeal procedure. He repeatedly stated that he would not return to work even if his appeal succeeded. The appeal was upheld: he was reinstated, issued a final written warning, and required to return to work. He then resigned and alleged constructive unfair dismissal.

The Employment Tribunal upheld the claim, holding that pursuing the appeal had not affirmed the contract. It had not been referred to the relevant Court of Appeal authorities. The employer appealed on the affirmation issue. The central issue was whether the contractual appeal affirmed the contract and, if so, whether the employee could nevertheless rely on a continuing breach of trust and confidence during the appeal process.

1. Appeal allowed. The Employment Tribunal’s conclusion that the employee had not affirmed the contract by pursuing the contractual appeal could not stand.

2. Applying Folkestone Nursing Home Ltd v Patel [2019] ICR 273, an employee who invokes and does not withdraw a contractual appeal against dismissal objectively seeks restoration to employment if successful. The employee’s pursuit of the appeal was therefore an unequivocal election to treat the contract as continuing. His statements that he did not intend to return to work could not qualify that legal effect. His subjective wish to clear his name or protect his financial position was immaterial.

3. Affirmation was not decisive of the whole constructive-dismissal claim. The employee alleged that the employer continued to breach the implied term of trust and confidence through its handling of the appeal and its outcome. Under Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1, an employee may rely on a cumulative course of conduct despite prior affirmation where later conduct forms part of the repudiatory series. If the relevant questions are answered so as to establish such a course, the prior affirmation is immaterial.

4. The Tribunal had criticised aspects of the post-appeal conduct but had not determined the five Kaur questions with full argument. Its reconsideration answers did not establish that the claim would necessarily fail, particularly given the complaint of continuing delay after the appeal had been invoked.

5. The finding of constructive unfair dismissal was set aside. The issue was remitted to the same Employment Tribunal for reconsideration in light of this judgment and the Kaur questions. There was no reason to doubt that tribunal’s impartial professionalism.

• Employment Appeal Tribunal: allowed the employer’s appeal, set aside the finding of constructive unfair dismissal, and remitted that issue to the same Employment Tribunal.
• Employment Tribunal, Nottingham: upheld the employee’s constructive-unfair-dismissal claim. Its reconsideration judgment refused the employer’s application for reconsideration.