Brooks v Brooks Leisure Employment Services Ltd

The Employment Appeal Tribunal held that the Employment Tribunal was entitled to find that the respondent breached the implied term of mutual trust and confidence by removing the claimant from a WhatsApp group and withdrawing a home‑working opportunity without explanation or consultation. However, the Employment Tribunal erred in law in concluding that the claimant had affirmed her contract before resigning by continuing to accept pay during the intervening period. The EAT remitted the limited issue of affirmation to the same Employment Tribunal for reconsideration, because the ET had not expressly taken into account material matters (notably the claimant's ongoing grievance and an email reserving rights) when addressing affirmation.

Background and procedural history. The claimant, employed since 1990 as a Resort Holiday Sales Advisor, brought claims of disability discrimination and unfair constructive dismissal arising from events in March–June 2020 during the Coronavirus lockdown. The Employment Tribunal heard the claims on 8 and 9 December 2021 and sent its judgment on 13 May 2022. The claimant did not pursue the discrimination claim on appeal; the appeal and cross‑appeal to the EAT concerned only the unfair dismissal/constructive dismissal finding.

Nature of the claim / relief sought. The claimant alleged that removal from a WhatsApp group and exclusion from a home‑working team on 24 March 2020 amounted to a repudiatory breach of the implied term of mutual trust and confidence, entitling her to terminate her contract and claim constructive (unfair) dismissal.

Issues for the court.

• Whether the respondent's conduct was calculated or likely to destroy or seriously damage trust and confidence.
• Whether the respondent had reasonable and proper cause for its conduct.
• Whether the claimant resigned because of that breach.
• Whether delay in resigning, acceptance of pay or use of grievance procedures amounted to affirmation or waiver of the breach.
• If there was constructive dismissal, whether any dismissal was fair under section 98(4) of the Employment Rights Act 1996.

Decision and reasoning. The EAT found that the Employment Tribunal was entitled to conclude that the respondent's conduct, viewed in context (including removal after the claimant had asked about remuneration), breached the implied term of mutual trust and confidence. The cross‑appeal contending perversity failed because the ET had properly focussed on the pleaded case and the surrounding context. On affirmation, the EAT held that the ET had erred by concentrating solely on continued receipt of pay during the delay and not expressly considering (a) the claimant's unresolved grievance at the date of resignation and (b) her email of 5 May 2020 reserving all rights. The EAT emphasised established authorities on affirmation and on use of internal procedures (in particular W E Cox Toner and Kaur/Gordon) and concluded that use of grievance procedures will generally not amount to unequivocal affirmation. For these reasons the EAT allowed the appeal in part and remitted the specific question of whether the claimant affirmed the contract back to the same Employment Tribunal for rehearing.

Appeal allowed in part. The Employment Tribunal did not err in law in finding that the respondent breached the implied term of mutual trust and confidence, but erred in law in finding that the claimant had affirmed her contract before resigning. The matter was remitted to the same Employment Tribunal to determine whether the claimant had affirmed her contract, taking into account her ongoing grievance and her reservation of rights.

Appeal from an Employment Tribunal decision following a hearing on 8–9 December 2021 (judgment sent 13 May 2022). The Employment Appeal Tribunal delivered judgment on 8 November 2023 ([2023] EAT 137) and remitted the limited issue of affirmation to the same Employment Tribunal for rehearing.