Sandra Brooks v Brooks v Leisure Employment Services Ltd.

An employee does not affirm a repudiatory breach merely through delay in resigning. The question is what occurred during the intervening period. Receipt of pay may be relevant, but it is not determinative.

Where an employee pursues a contractual grievance to give the employer an opportunity to resolve the matters said to constitute a breach, that step will generally not amount to unequivocal affirmation. A tribunal must assess the grievance process, and any reservation of rights, when deciding whether the employee affirmed the contract.

The claimant, a disabled holiday-resort sales adviser, was removed without consultation or explanation from a WhatsApp group for staff selected to work from home during the Covid-19 lockdown. She had raised concerns about her remuneration before her removal.

She brought claims for disability discrimination and constructive unfair dismissal. The Employment Tribunal dismissed both claims. It held that the respondent’s treatment breached the implied term of mutual trust and confidence, but that the claimant had affirmed the contract by accepting payments and not resigning for three months. The disability-discrimination decision was not challenged.

The respondent cross-appealed against the finding of repudiatory breach. The claimant appealed against the finding of affirmation. The central issue was whether the tribunal had lawfully treated the claimant’s conduct during an unresolved grievance as affirmation.

1. Appeal allowed; cross-appeal dismissed. The Employment Tribunal was entitled to find a repudiatory breach of the implied term of mutual trust and confidence. The pleaded complaint was removal from the WhatsApp group, but the tribunal could assess that act in its factual context. That context included the claimant’s legitimate concerns about remuneration, the value of the home-working opportunity, and the absence of consultation or explanation.

2. The respondent did not establish perversity. The tribunal understood the pleaded case and its contextual assessment of whether the implied term had been breached was open to it.

3. The tribunal erred in its affirmation analysis. Under the applicable contractual principles, delay alone does not establish affirmation. What occurs during the delay matters. Although accepting continued payment may be evidence of affirmation, the tribunal could not decide the issue solely by reference to payment and the elapsed period.

4. The claimant had invoked a grievance procedure which remained unresolved when she resigned. The tribunal had to consider whether that was an attempt to obtain a remedy while preserving the option of accepting the repudiation. Use of a contractual grievance procedure will generally not be an unequivocal affirmation. The tribunal also had to consider the claimant’s email reserving her rights.

5. The reference to 11 May 2020 as the termination date was a slip. The findings showed that resignation occurred on 25 June 2020, and an uncommunicated internal decision to accept a repudiation could not itself terminate the employment.

6. The affirmation issue was remitted to the same Employment Tribunal for rehearing. The respondent must identify conduct said to demonstrate affirmation beyond mere delay in resigning.

• Employment Appeal Tribunal: appeal allowed and cross-appeal dismissed in [2023] EAT 137. The affirmation issue was remitted to the same Employment Tribunal.
• Employment Tribunal: claims for disability discrimination and constructive unfair dismissal dismissed. Its finding of repudiatory breach was upheld, but its finding of affirmation was set aside.