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The employee must not have waived the breach
[ch 10: pages 279-281]Even if there has been a fundamental breach of the contract, the employee will lose the right to claim constructive dismissal if they waive the breach by behaving (through action or inaction) as if they are willing for the contract to continue. The legal term for this is affirmation. Affirmation can be express (communicated orally or in writing) or implied (based on how the employee’s behaviour appears to an outside observer). An employee’s private intentions are not relevant.
Delay is one of the most common forms of affirmation. In Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal said that giving up a job is a very serious business and that the greater the risks to an employee’s financial security, the less hasty a tribunal should be to infer that someone who delays resigning must intend to send a message that they want the contract to continue.
Delay on its own will not necessarily mean that the employee has affirmed the contract. There is no rule that a particular amount of delay will result in affirmation (WE Cox Toner (International) Ltd v Crook 1981 ICR 823). Instead what matters is the message sent by the delay. All the circumstances are important. The more serious the behaviour, the less likely a tribunal is to infer that by delaying, the employee intended to give up their rights. For example:
In Chindove v Morrisons Supermarket PLC [2014] UKEAT 0043/14/BA, Mr Chindove, a black British warehouse operative, took six weeks to decide to resign and claim constructive dismissal after his complaints of racial harassment were not taken seriously after a co-worker asked him when he was “going home”. The EAT overturned a tribunal ruling that six weeks of delay by a warehouse operative with nine years of service was evidence of affirmation.
Chindove v Morrisons Supermarket PLC [2014] UKEAT 0043/14/BA
Volunteering to work more than the minimum notice required under the employment contract after the contract breach is likely to be evidence of affirmation:
In Cockram v Air Products PLC [2014] UKEAT 0038/14/LA, a well-paid senior employee resigned, protesting that he was very angry with his treatment at work. But he gave twice the minimum contractual notice needed, saying he needed to earn enough money to give himself financial security before resigning as he didn’t have a job to go to. He brought a claim for constructive dismissal. The EAT said that by voluntarily offering more than his minimum contractual notice, Cockram affirmed the contract, showing himself willing for the contract to continue. He lost the right to claim constructive dismissal.
Cockram v Air Products PLC [2014] UKEAT 0038/14/LA
Simply protesting in writing at the time of the unacceptable behaviour and then continuing to work as normal is not enough. Continuing to work under protest for just a few weeks, having communicated clearly to the employer that the position is not accepted, may not amount to an affirmation of the contract. However at the very least, the employee should regularly renew their objection, for example, on each monthly pay day (Burdett-Coutts v Hertfordshire County Council [1984] IRLR 91). In practice, proceedings will need to be issued quickly if a resolution cannot be reached.
An employee who is off work on long-term sick leave can affirm the contract by continuing to accept sick pay after a fundamental contract breach. Whether or not accepting sick pay amounts to affirmation depends on the surrounding context. Where someone is obviously too ill to bring a claim, accepting sick pay will not amount to an affirmation. However, someone who carries on accepting sick pay even though they are well enough to resign and bring a tribunal claim may well find they have affirmed their contract. These issues were discussed in the recent case of Columbar Mari v Reuters Limited [2014] UKEAT/0539/13/MC. The EAT suggested that all that can safely be said is that an innocent employee faced with a repudiatory breach does not affirm the contract just by continuing to draw sick pay for a limited period while protesting the position.
Here are some case examples:
In Bashir v Brillo Manufacturing Co Limited [1979] IRLR 295, a claimant was demoted from a management to a non-supervisory job with less pay. He went off sick, drawing sick pay, and instructed solicitors to make it clear that he did not accept the lower rate job. He told his employers that if they did not reinstate him as a supervisor he would resign, which he did after claiming sick pay for three months. The EAT said he had not affirmed the contract by claiming sick pay.
Bashir v Brillo Manufacturing Co Limited [1979] IRLR 295
In El-Hoshi v Pizza Express Restaurants [2003] UKEAT/0857/03, an assistant branch manager was demoted to work in the kitchens after whistleblowing. He went off work sick and instructed solicitors. He made it clear in writing that he did not accept what was happening to him. He was paid sick pay for a few weeks and launched tribunal proceedings within three months of the demotion. The EAT said accepting sick pay did not mean that he had affirmed the contract. He could bring his claim.
El-Hoshi v Pizza Express Restaurants [2003] UKEAT/0857/03