Welcome back to this week’s case of the week. Last week, we looked at Tesco Stores Ltd v Ms K Element & Others, click here if you missed it.

This week, we look at Kinch v Compassion in World Farming International, a case that highlights the complexities of constructive unfair dismissal and the legal principle of affirmation. When a troubling comment led the employee to resign, the question became: did continuing to work for months after resignation undermine her claim?

Background

The Claimant was employed as a UK Finance Controller by Compassion in World Farming International from June 2016. In 2022, due to personal circumstances, the Claimant requested to work from home full-time. Her request was declined. During a phone call on 26 August 2022, the Global HR Manager told the Claimant to return to the office for at least two days per week or face “a sticky end.”

The Claimant resigned four days later, citing this comment as evidence of a fundamental breach of the implied duty of trust and confidence by her employer. However, instead of leaving immediately, she served notice and then continued her employment for an extended period until April 2023, following several agreed extensions of her notice period.

The Employment Tribunal (‘ET’)

After leaving, the Claimant filed a claim for constructive unfair dismissal. She was resigned in response to a fundamental breach. The employer, sought to strike out her claim under Rule 37 of the Employment Tribunal Rules on the basis that it had “no reasonable prospect of success.” Their primary argument was that the Claimant had affirmed the employment contract by continuing to work under its terms for eight months after her resignation.

The tribunal agreed and struck out the case without a hearing, concluding that her extended employment amounted to affirmation. The judge found it was the Claimant who repeatedly asked to extend her notice period “for her own benefit.”

Appeal to the Employment Tribunal (‘EAT’)

The Claimant appealed. She argued that the question of whether her actions amounted to affirmation could not be determined without a hearing of the facts. She also claimed that the tribunal misunderstood key points, such as who initiated the notice extensions and why.

The EAT agreed. In fact, both the ET1 and the evidence indicated mutual benefit or Respondent-led requests for extensions. some intended to assist in transition and team support.

The EAT stated that the issue of affirmation is highly specific and should not be resolved without oral evidence where facts are disputed. The tribunal had erred in law by striking out the case based on an incomplete and potentially incorrect factual understanding.

The EAT set aside the strike-out judgment and remitted the case to a new tribunal for a full merits hearing.

Takeaway Points

For employers it is important to note that the Tribunal will look at the full context to decide if a contract is affirmed. It will look at who requested an extension, why it was implemented, and how both parties behaved during that period all matter.

It is also important for employers to keep detailed written records of the reasons when extending notice or adjusting employment terms after a resignation.

If you or someone you know are dealing with a similar issue, please contact us for further assistance.