The Claimant was summarily dismissed by the Respondent on 23 July 2018, just before the Respondent received his letter of resignation alleging constructive dismissal. On 6 August the Claimant invoked the contractual appeal procedure and subsequently stated that he did not intend to return to his employment if his appeal was successful. On 16 October the Respondent upheld his appeal against dismissal, reinstated him subject to a final written warning, and required his return on 29 October. By letter of 22 October the Claimant resigned, alleging constructive unfair dismissal. As part of its defence the Respondent contended that the Claimant had affirmed the contract by his invocation of the appeal procedure. The ET was not referred to the decisions of the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1 or Folkestone Nursing Home Ltd v Patel [2019] ICR 273. The ET held that the Claimant had not affirmed the contract, relying in particular on his statements of intent not to return to work, and upheld the claim.
On the Respondent’s appeal, the EAT applying Folkestone Nursing Home Ltd held that the Claimant had affirmed the contract of employment by his invocation of the contractual appeal procedure. However, that was not the end of the matter. The Claimant’s case was that the Respondent had thereafter and until his resignation on 22 October continued to act in breach of the implied term of trust and confidence. Accordingly, it had been necessary for the ET to consider the five questions identified by the Court of Appeal in Kaur at [55]. The appeal was allowed and the matter restored to the same ET for consideration afresh.
[2020] UKEAT 0264 – 19 – 0602
Bailii
England and Wales
Updated: 11 August 2021; Ref: scu.653264