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.
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.
Not followed by Quilter Private Client Advisers Ltd v Falconer [2020] EWHC 3294 (QB) (2020-12-04)
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. [Summary checked against a practitioner text, not the judgment.]
Disapproved by Kaur v Leeds Teaching Hospitals NHS Trust [2018] EWCA Civ 978 (2018-05-01)
Constructive dismissal; 'last straw'; affirmation. The last straw doctrine is relevant only to a cumulative breach of the implied term of trust and confidence, not to a one-off repudiatory breach [42]. An employee who soldiers on after the employer's conduct has crossed the Malik threshold can still rely on the totality of that conduct if it is continued by a further act in response to which she resigns [43]. The further act does not revive the earlier breach as such: it revives the right to terminate [51]. Tribunals should put Vairea to one side and follow Omilaju [52]. Five questions for the normal case are set out at [55]. A disciplinary process properly followed cannot constitute, or contribute to, a repudiatory breach [75]. The employment judge had directed himself correctly in striking the claim out [61]: the appeal failed.
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Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
Constructive dismissal; affirmation; resignation on notice. Calver J said that an employee who accepts a repudiatory breach must do so unambiguously and with sufficient dispatch, but what happens during any delay is critical: provided he makes his objection to the employer's conduct unambiguously clear, he is not necessarily taken to have affirmed the contract by giving a short period of notice and continuing to work and draw pay for a limited time. To that extent the judge respectfully disagreed with Simler J's observation in Cockram v Air Products plc that at common law an employee must resign without notice [119]-[121]. On the facts the employee was not constructively dismissed [122].
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.
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.
Cites
References found in the judgments’ text, with the number of paragraphs in which each case is mentioned. Not a classification: how a case was treated is recorded under Later history.