The Employment Appeal Tribunal (EAT) has made it clear that giving lengthy notice when resigning will not automatically defeat a claim for constructive dismissal. If a notice period is extended, the tribunal must understand the reason for the extension, which will generally require a fact-finding process.

Background

The case of Helen Kinch v. Compassion in World Farming International concerned an employee who resigned due to an alleged repudiatory breach of her contract by her employer. The employer denied Mrs Kinch's flexible working request, which she had sought due to personal circumstances. After being told to return to the office twice a week or face a "sticky end", she resigned in August 2022 giving her employer three months' notice which was more than her contractual notice period of one month. Following this, and on request from both her and the employer, Mrs Kinch extended her notice period on numerous occasions and continued to be employed until April 2023. During this time, Mrs Kinch raised a grievance regarding the refusal of flexible working which was unsuccessful.

Employment Tribunal decision

Mrs Kinch subsequently brought a claim for constructive unfair dismissal, alleging that the "sticky end" comment was the reason for her reluctant resignation. She said that while she had originally offered three months' notice to assist the team, her employer then asked for her to extend this a few times and on the final occasion she had requested an extension to which the employer agreed. In their response, the employer denied they had breached the employment contract and argued that Mrs Kinch had breached the implied duty of trust owed between them through her request and subsequent grievance. The employer applied to have Mrs Kinch's claim struck out as having no reasonable prospect of success. They argued that by agreeing, and asking, to extend her notice, and continuing to work for them, Mrs Kinch had accepted any alleged breach and, as a result, affirmed the contract.

The Employment Tribunal (ET) considered the employer's application and Mrs Kinch's response to it on the papers without a hearing and agreed with the employer that there were no reasonable prospects of success on the mistaken belief that Mrs Kinch had requested all the extensions of the contract and struck out the claim. The ET determined that Mrs Kinch would be unable to show that the numerous extensions of her notice period did not have the effect of affirming the contract.

EAT decision

The EAT held that the strike-out was an error of law. A significant part of the ET's decision included the understanding that Mrs Kinch had asked for several extensions of the notice period for her own benefit and that this was an undisputed fact. On appeal, the EAT determined that was incorrect and nothing in the pleadings or submissions supported that conclusion. The EAT noted that the facts surrounding the extensions were important in determining whether Mrs Kinch had affirmed the contract and there had been no hearing to consider such evidence. As a result, the ET could not resolve the issue of affirmation. The EAT confirmed that a tribunal should not strike out a constructive dismissal claim on the grounds of affirmation without a proper evidential hearing when the parties dispute the circumstances of an extended notice period.

The EAT set aside the strike-out judgment and remitted the case to a different tribunal to hear evidence.

Takeaways

In many constructive unfair dismissal claims, the employee will have resigned with no notice. This helps to underline their argument that any breach by the employer was so significant that they could not continue to work for them. However, the legislation makes it clear that a resignation can form the basis of an unfair dismissal claim whether the employee gives notice or not. This is to ensure that an employee who is considerate enough to give notice is not in a worse position than one who does not.

This case is unusual given the number and length of the extensions to the notice period to which Mrs Kinch agreed. However, the EAT noted that the question of whether an employee has affirmed the contract is a fact-sensitive one, which does not lend itself to rigid rules. In circumstances where there has been an extension of the notice period, it will be important for a tribunal to understand the reason for that extension before coming to a conclusion. This means that a tribunal must generally go through a fact-finding process to be able to conclude whether the claimant has affirmed the contract.

In the case of a strike-out application, a tribunal must be satisfied that the claim (or response) has no reasonable prospect of success. In cases where key facts are undisputed or can be clearly shown in documents, it may be appropriate to strike out a claim. However, a tribunal cannot determine the reasonable prospects test by considering just the pleadings put forward in the first instance.