Whether an employee who delays resigning has affirmed the contract and lost the right to treat it as at an end. Kaur v Leeds Teaching Hospitals NHS Trust; Leaney v Loughborough University.
Race discrimination; it is unlawful to segregate employees by race, even if facilities are equal.
Constructive dismissal; affirmation; delay of 7 months affirmed the contract.
Affirmation; continuing breach. Where the employer is in continuing breach — there, three years of paying below the Wages Council minimum — the employee may rely on the original breach at any time while it continues, and is not taken to have affirmed the contract merely by failing to react to the first instance of it.
Constructive dismissal; affirmation; using the grievance procedure does not affirm the contract, but long delay might.
Constructive dismissal; affirmation; delay. Affirmation is 'essentially one of conduct and not of time': there is no fixed period after which an employee loses the right to resign in response to a repudiatory breach, and the passage of time alone proves nothing. Delay usually matters because continuing to work is conduct evidencing a choice to keep the contract alive — but that inference has nothing like the same force where the employee is off sick and not working, as Mr Chindove was.
Constructive dismissal; affirmation; working out extended notice. An employee who resigned in response to an alleged repudiatory breach but gave seven months' notice when his contract required only three, solely for his own financial reasons, affirmed the contract; strike-out of his constructive unfair dismissal claim was upheld. Affirmation is fact-sensitive: the length of notice given beyond the contractual minimum and the reasons for giving it are relevant circumstances under s.95(1)(c) ERA 1996 — resigning on notice does not immunise the employee from affirming by the manner of doing so.
UKEAT/0539/13 - Constructive dismissal; affirmation; accepting sick pay for 18 months affirmed the contract, barring a claim.
Affirmation; evidence of protest. A tribunal finding affirmation must weigh all the evidence of protest: it erred by focusing on the employee's signed acceptance of demoted terms and five months' service in the new role while ignoring oral evidence that she worked only under protest.
Constructive dismissal; affirmation; cumulative breach. The EAT held that an employee who had affirmed the contract in response to earlier breaches could not revive those breaches by reference to a later 'last straw' act. This approach was disapproved by the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust [2019] ICR 1, which confirmed that an employee victim of a continuing cumulative breach may rely on the totality of acts provided the later act forms part of the same series.
Constructive dismissal; 'last straw'; a last straw act revives all previous breaches of contract.
Constructive dismissal; affirmation; simply waiting for the outcome of a grievance does not automatically affirm the contract.
Constructive dismissal; resignation on notice does not necessarily affirm. Provided the employee makes her objection unambiguously clear, giving a short period of notice and continuing to work and draw pay for a limited period is not fatal. Calver J expressly disagreed with Simler J's dictum in Cockram v Air Products that at common law the employee must resign without notice, and held that affirmation also requires knowledge of the right to elect.
Constructive dismissal; affirmation; delay. Mere passage of time is not, of itself, affirmation: the question is whether the employee's conduct during the period conveyed an intention to keep the contract alive, and where little or nothing is required of the employee under the contract during the period (here a university vacation, with settlement communications ongoing) delay carries less weight. The tribunal's finding that a three-month gap before resignation amounted to affirmation was set aside and the issue remitted.