EAT UNFAIR DISMISSAL – Constructive dismissal
Constructive Dismissal – affirmation
The Employment Tribunal (‘the ET’) found changes to the Claimant’s job (made unilaterally, without consultation and affecting 30% of his work) amounted to a fundamental and repudiatory breach of contract but also found the Claimant had failed to expressly object to those changes between their introduction (17/1/2014) and his resignation (3/3/2014) but had worked to them without objection and had therefore affirmed the contract of employment.
On appeal, held:
(1) On the material before it, the ET had been entitled to conclude the Claimant had not expressed his objection to the changes before his resignation. The first ground of appeal therefore failed.
(2) In considering whether or not the Claimant was to be taken to have affirmed the contract, however, context was everything (see, in particular, W E Cox Toner (International) Ltd v Crook [1981] IRLR 443 EAT; Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121, [2010] IRLR 445 CA; and Chindove v William Morrisons Supermarket plc UKEAT/0201/13/BA). In this case, the ET’s Reasons suggested that there had been a failure to take into account that the Claimant had been away from work due to ill-health from 4/2/2014 until his resignation; his conduct during that period could properly be seen in a different light to the period before that (on the ET’s finding, 10 working days), see Chindove, and it was not apparent that the ET had proper regard to that distinction.
Moreover, it was the Claimant’s case before the ET that he was expecting to receive written confirmation of the Respondent’s conclusions, as an outcome of the meeting on 21/1/2014, and he was biding his time until receipt of this. As the Respondent had agreed to provide the Claimant with written confirmation of the meeting, and did not subsequently inform him that its HR advisors had advised that it should not do so, the Claimant’s position in this respect might be seen to provide an explanation of any failure to expressly object; it was certainly a relevant factor going to the context that the ET needed to engage with in this case. That was all the more so given that the conclusion of the meeting of 21/1/2014 cited by the ET was in fact the record of the Respondent’s own internal discussions in the absence of the Claimant and the written record of this had not been provided to him.
Finally, an employee was to be permitted some time for reflection before it was to be implied that s/he had affirmed the contract after an employer’s repudiatory breach (Buckland) and it was not apparent that the ET had taken this into account as part of the relevant factual matrix, i.e. a case involving someone who had been employed since 2006; who was still awaiting written confirmation of the meeting of 21/1/2014, and whose case was that he was biding his time until he got this; who worked his new duties for 10 days before being signed off due to stress.
The appeal on this basis would be allowed and the question of affirmation remitted to the same ET for fresh consideration.
Eady QC HHJ
[2015] UKEAT 0044 – 15 – 2805
Bailii
England and Wales
Employment
Updated: 03 January 2022; Ref: scu.551013