If an employee affirms their contract by staying in their job after an alleged breach by their employer, they lose the right to bring a claim for constructive unfair dismissal. In Brooks v Leisure Employment Services Ltd, the EAT held that as Ms Brooks had not affirmed her contract by staying in her job (and getting paid) for three months after her employer’s alleged breach, she could still claim unfair dismissal.
Basic facts
Ms Brooks, a Resort Holiday Sales Advisor at a call centre, was paid mostly by commission. When her employer closed all its resorts in response to the first Covid-19 lockdown in March 2020, she initially worked from home on full pay. Shortly after this, she was asked to join a home-working team which operated via a WhatsApp group.
Concerned about how joining the group would affect her pay, Ms Brooks asked her manager for more information. Instead of answering her queries, however, her manager removed her from the group without any explanation. She was subsequently told that it was because there were more candidates for the home-working team than could be recruited although this was untrue.
Ms Brooks lodged a grievance in May 2020 alleging breach of the implied term of mutual trust and confidence which was dismissed by the company in August 2020. During email discussions about documentation that she had requested for her grievance, she wrote to her employer saying that “I reserve all of my rights”, thereby indicating that she was not giving up any rights she might want to rely on in the future.
Ms Brooks resigned in June 2020 and claimed unfair constructive dismissal (among other things) arguing that by removing her from the WhatsApp group, her employer had breached the implied term of trust and confidence.
Tribunal decision
The tribunal found that the reason for her resignation was indeed her removal from the WhatsApp group in March 2020. It agreed with Ms Brooks that, given the context at the time, her employer was guilty of a breach of contract by withdrawing a valuable opportunity to keep on working without giving her any notice.
However, it then held that she had affirmed the breach by continuing to accept payment without resigning for three months, which was consistent with the continued existence of a contractual obligation between her and her employer.
Ms Brooks appealed, arguing that the tribunal was wrong to find that she had affirmed her contract. The company cross-appealed against the decision that it was guilty of a breach of contract.
EAT decision
Allowing Ms Brooks’ appeal, the EAT noted that the tribunal did not seem to have considered the fact that she had written in an email to her employer in May 2020 that “I reserve all of my rights”.
In addition, the EAT pointed out that she had made up her mind whether to accept the breach within the timeframe of two to three months which the tribunal itself had said would be appropriate. More significantly, it held that the tribunal should not have focused entirely on the fact that she had continued to be paid during the period between the breach and her resignation.
The key reason for allowing the appeal, however, was the tribunal’s failure to consider the fact that Ms Brooks had raised a grievance that had not been completed at the date of her resignation.
The EAT dismissed the cross-appeal, holding that the tribunal had been entitled to consider the breach in the context in which it occurred, namely lockdown and Ms Brooks’ understandable concerns about her pay if she joined the home-working team.
It remitted the issue of affirmation to the same tribunal for reconsideration.
Comment
This case confirms that where a claimant has engaged in a contractual grievance or appeal procedure it is not likely to unequivocally affirm the employment contract for the purposes of a constructive dismissal claim.