Helen Kinch v Compassion in World Farming International

An employee who resigns in response to a repudiatory breach may give notice without, by that fact alone, affirming the contract. Whether conduct during an extended notice period amounts to affirmation is a fact-sensitive question. The reasons for agreeing an extension, its benefit to each party, and the employee’s conduct require examination.

A complaint should not be struck out under rule 37 where its viability depends on disputed or unclear material facts. The tribunal must not decide contested factual assertions on the papers or conduct a mini-trial. Under section 95(1)(c) of the Employment Rights Act 1996, notice may be given following an employer’s material breach.

The appellant resigned with notice after her flexible-working request was refused and she was told to return to the office or face a “sticky end”. She alleged constructive unfair dismissal. Her notice period was extended by agreement until April 2023.

The respondent contended that she had affirmed the contract by seeking extensions and continuing to work. The Employment Tribunal struck out the claim without a hearing, holding that it had no reasonable prospect of success because the appellant had obtained extensions for her own benefit. It later refused reconsideration.

The appellant appealed. The central issue was whether affirmation could properly be determined on the papers where the circumstances and reasons for the notice extensions were unclear or disputed.

1. Appeal allowed. The Employment Tribunal’s strike-out judgment was set aside. The claim was remitted to a differently constituted tribunal to hear evidence on constructive unfair dismissal, the respondent’s affirmation defence, and necessarily incidental factual issues.

2. Section 95(1)(c) of the Employment Rights Act 1996 permits an employee to terminate in response to the employer’s material breach with or without notice. Giving notice does not itself affirm the contract. Conduct during notice may nevertheless amount to affirmation if it is consistent only with accepting the contract’s continued existence.

3. Affirmation is always a matter of fact and degree. It is highly dependent on context and does not admit bright-line rules. The reasons for a mutually agreed extension of notice may be important, including whether it was sought for the employee’s benefit, the employer’s benefit, or both.

4. The tribunal erred by treating it as established that the appellant repeatedly sought extensions for her own benefit. That conclusion was unsupported by the pleadings, written submissions, and the contemporaneous documents. The appellant’s case was that she had been asked to remain to support the team; even the respondent’s account did not support the tribunal’s finding for the whole extended period.

5. On a rule 37 application, the question is whether the claim has no reasonable prospect of success, not whether it is likely to fail. A tribunal cannot determine disputed factual assertions by preferring one party’s written account. Since the circumstances of the extensions and the appellant’s conduct required evidence, the affirmation issue could not lawfully be resolved on the papers.

• Employment Appeal Tribunal: Allowed the appeal and set aside the Employment Tribunal’s strike-out judgment: [2025] EAT 41.
• Employment Tribunal: Struck out the constructive unfair dismissal complaint under rule 37 and later refused reconsideration. No citation was stated.