EAT Examines Affirmation of Contract in Unfair Dismissal Case Brooks v Leisure Employment Services Ltd.

Citation: [2023] EAT 137
Judgment on


The case of Sandra Brooks v Leisure Employment Services Ltd. provides a nuanced examination of the legal principles surrounding unfair dismissal and the concept of affirmation in employment contracts. The Employment Appeal Tribunal (EAT) was tasked with assessing whether the Employment Tribunal (ET) correctly applied the law in determining a breach of the implied term of mutual trust and confidence and whether the claimant had affirmed her contract of employment before resigning. This article will dissect the EAT’s judgment to elucidate the key legal topics and principles central to the case.

Key Facts

Sandra Brooks, employed by Leisure Employment Services Ltd., brought complaints of disability discrimination and unfair constructive dismissal following her removal from a WhatsApp group used for coordinating a home-working team during the COVID-19 pandemic. The respondent had closed its resorts due to the pandemic, and Brooks had raised concerns about her future remuneration reliant on commission. Subsequent non-response led her to claim discrimination and breach of the implied term of mutual trust and confidence. After filing a grievance and awaiting its outcome, Brooks resigned, citing this breach.

The legal discussions in this case revolve predominantly around the implied term of mutual trust and confidence within employment contracts and whether the employee’s actions following a breach equate to affirmation of the contract.

Implied Term of Mutual Trust and Confidence

The case reinforces that this implied term is fundamental to an employment relationship. The tribunal found that the manner in which Brooks was removed from the WhatsApp group, and the context around it, constituted a breach of this term. This decision aligns with the established principle that actions by an employer calculated to destroy or seriously damage the relationship of trust and confidence, without reasonable and proper cause, may constitute a repudiatory breach, as highlighted in Woods v WM Car Services (Peterborough) Ltd.

Affirmation of Contract

Brooks’ case illustrates that if an employee continues to engage in the employment relationship without quickly resigning after a repudiatory breach, they may be seen to affirm the contract, thus waiving their right to claim constructive dismissal. This stems from W E Cox Toner (International) Ltd v Crook, where the principles dictate that continued involvement in the employment contract could imply affirmation but does not do so automatically due to delay.

Grievance Procedures and Affirmation

The use of the internal grievance procedures by an employee after an alleged repudiation does not necessarily lead to the affirmation of the contract. The case references Kaur v Leeds Teaching Hospitals NHS Trust, which clarifies that engaging in such processes is not an unequivocal acceptance of the contract. This principle preserves the employee’s statutory rights while giving the employer an opportunity to remedy any alleged breach.


The EAT upheld the ET’s decision on the breach of the term of mutual trust and confidence. However, it found error on the part of the ET in concluding that Brooks had affirmed the contract by staying on payroll and processing a grievance for three months before resigning. The EAT considered the ET’s analysis to be incomplete as it did not examine the effect of the claimant’s steps to ‘reserve all rights’ during the grievance process and directed a remission for the ET to reconsider whether Brooks affirmed her contract in light of her pursuing the grievance procedure.


In summary, the Brooks v Leisure Employment Services Ltd. case underscores the delicacy with which tribunals must treat the notion of affirmation in employment law. An employee’s right to claim constructive dismissal hinges on a clear understanding of the acts constituting affirmation or an otherwise unequivocal intent to continue the employment relationship post-breach. The examination reveals that maintaining employment and engaging in contractual grievance procedures, especially within a reasonable timeframe and with expressions indicating the reservation of rights, may not constitute affirmation. The remission by the EAT for re-examination emphasizes the need for careful consideration of all aspects of an employee’s conduct post-breach when adjudicating on matters of affirmation.