Helen Kinch v Compassion in World Farming International

The Employment Appeal Tribunal allowed an appeal against an employment judge's strike out of a complaint of constructive unfair dismissal under rule 37 because the judge reached a dispositive factual conclusion on the papers. The tribunal held that whether the claimant had affirmed the contract by agreeing successive extensions of her notice period was a question of fact and degree that could not properly be resolved without a hearing where the facts and reasons for the extensions were disputed or unclear. The decision explains the interaction between the common law on affirmation, section 95 of the Employment Rights Act 1996 and the limited circumstances in which a tribunal may strike out a claim as having no reasonable prospect of success.

Background and facts:

• The appellant was employed as UK Finance Controller from 28 June 2016. After a disputed telephone conversation on 26 August 2022 and the refusal of a flexible working request, she resigned on 30 August 2022, saying she did so to avoid a "sticky end". The respondent accepted the resignation.
• By agreement and over a series of communications the parties extended the appellant's notice period so that her employment continued until 28 April 2023. During that extended notice period the appellant pursued a grievance and an appeal about the flexible working refusal.

Procedural posture:

• The appellant presented an ET1 for constructive unfair dismissal. The respondent applied to strike out the claim under rule 37 on the ground it had no reasonable prospect of success because, it said, the claimant had affirmed the contract by requesting and accepting extensions of notice.
• The employment judge struck out the complaint on the papers, concluding there was no reasonable prospect of success because the appellant had asked for and benefited from the extensions. A reconsideration request was refused and the appellant appealed to the Employment Appeal Tribunal.

Nature of the claim and issues:

1. (i) The nature of the claim: a complaint of constructive unfair dismissal, seeking to establish dismissal by reason of the respondent's alleged repudiatory breach.
2. (ii) Issues framed by the court on appeal: whether the employment judge erred in striking out the claim without a hearing; whether the factual circumstances and reasons for the agreed extensions meant the claimant had affirmed the contract; and whether the judge mischaracterised the appellant's response to the strike-out application.

Court’s reasoning and conclusion:

• The EAT reviewed authority on affirmation, including the effect of section 95(1)(c) Employment Rights Act 1996 and authorities explaining that affirmation is highly fact-sensitive.
• The judge had treated as an undisputed fact that the appellant had repeatedly asked for the extensions for her own benefit; the EAT found that neither the pleadings nor the parties' submissions or contemporaneous documents supported that factual conclusion.
• Because the reasons for and circumstances of the notice extensions were material to the question of affirmation, it was an error of law to determine that issue on the papers without hearing evidence. The strike out was therefore set aside and the matter remitted for a full hearing of the factual issues.

The appeal is allowed. The Employment Appeal Tribunal held that the employment judge erred in law by concluding on the papers that the claimant had affirmed the contract through successive agreed extensions of her notice period. The judge treated as undisputed facts matters that were disputed or unclear in the pleadings and documentary material. Because affirmation is a question of fact and degree, the tribunal ordered the strike out decision set aside and the claim remitted to a differently constituted tribunal for a full hearing on the merits, including the respondent’s defence of affirmation.

Employment Tribunal reserved judgment striking out the claim on 23 November 2023 (sent 4 January 2024); reconsideration refused 28 February 2024; appeal to the Employment Appeal Tribunal resulting in [2025] EAT 41.