Sandra Brooks v Brooks v Leisure Employment Services Ltd.
[2023] EAT 137
Dr Paul Leaney v Loughborough University
23 November 2023
[2023] EAT 155
Employment Appeal Tribunal
A worker quit after 40 years, claiming unfair dismissal. A judge said he waited too long to quit after a problem, meaning he accepted the bad situation. A higher court disagreed, saying the judge didn't look at other important details, like ongoing talks and a holiday period, before sending the case back to be decided again.
Key Facts
- •Dr Leaney resigned from Loughborough University after 40 years of service.
- •He claimed constructive unfair dismissal due to a cumulative breach of trust and confidence.
- •The employment tribunal dismissed his claim, finding he had affirmed the contract after the last potential 'last straw' incident on 29 June 2020.
- •The appeal focused solely on the tribunal's decision regarding affirmation, not whether a fundamental breach occurred.
- •The claimant argued the tribunal misapplied the law on affirmation by focusing too much on the length of delay (almost 3 months) and failing to consider relevant factors such as ongoing negotiations, subsequent sickness absence, the summer holiday period, and his long service.
Legal Principles
An employee who is in fundamental breach of contract may affirm the contract, losing the right to treat the breach as ending the contract.
Western Excavations (ECC) Ltd v Sharp [1977] EWCA Civ 165
Affirmation can be express or implied from conduct; mere delay is not sufficient, but prolonged delay with relevant conduct during that period may imply affirmation.
Bashir v Brillo Manufacturing Co [1979] IRLR 295, W. E. Cox Toner (International) Ltd. v Crook [1981] ICR 823, Bournemouth University Higher Education Corporation v Buckland [2010] EWCA Civ 121, Chindove v William Morrisons Supermarkets Plc UKEAT/0201/13, Brooks v Brooks Leisure Employment Services Ltd [2023] EAT 137
Length of service is a relevant factor to consider when determining whether an employee affirmed a contract after a repudiatory breach, but there's no strict proportionality between service length and reasonable delay.
G. W. Stephens & Sons v Fish [1989] ICR 324, Chindove v William Morrisons Supermarkets Plc
Tribunal decisions should be read fairly and as a whole, without hypercriticism; a tribunal doesn’t need to address every piece of evidence or reasoning step.
DPP Law Ltd v Greenberg [2021] EWCA Civ 672
Postponing resignation to pursue a grievance procedure generally doesn't amount to affirmation.
Brooks v Brooks Leisure Employment Services Ltd [2023] EAT 137
Outcomes
The appeal was upheld.
The EAT found the tribunal erred in its approach to affirmation by focusing excessively on the length of the delay and insufficiently considering relevant conduct and circumstances during that period, including ongoing negotiations, subsequent sickness, the summer holiday, and Dr Leaney's long service.
The case was remitted to the same employment tribunal for reconsideration of the affirmation question.
The EAT determined it could not reach a decision on affirmation based on the existing facts, and the respondent did not consent to the EAT making the decision.