Employment Law Speed Read – 09/04/18
9th April, 2018
This week we feature a case in which the Employment Appeal Tribunal (EAT) held that if a breach of contract has been affirmed by an employee, a further breach by the employer cannot revive the earlier breach.
Pets at Home v MacKenzie  UKEAT/0146/17/RN
In Pets at Home v MacKenzie, the EAT found that a ‘final straw’ cannot revive a previously affirmed breach of contract in order to satisfy a constructive dismissal claim. The Employment Tribunal (ET) should not have simply focused on the final straw, but needed to also consider if the earlier acts of discrimination or breach of contract had been affirmed in relation to the Claimant’s failure to be fast tracked for the role she applied for.
The Claimant, an Assistant Manager at a Pets at Home Store, had applied twice for a promotion to Deputy Manager. The first time was in February 2015, during her pregnancy, and the second occasion being when she was on maternity leave in January 2016. On both occasions, the Claimant had not been automatically promoted into the position but had undergone an assessment, which she had then failed to pass.
In March 2016 she subsequently learned that a less experienced Assistant Manager (who had previously reported to the Claimant) had been successful in a further selection exercise for the second Deputy Manager vacancy. The Claimant said this was the last straw and resigned from her employment.
The ET upheld the Claimant’s complaint of constructive unfair dismissal, concluding that the Claimant had previously suffered direct pregnancy and maternity discrimination. Although the ET unanimously found that the Claimant’s free-standing complaints in those respects had been brought out of time, the majority considered that subsequently learning of the apparent promotion of a colleague was the final straw for the Claimant and this, taken together with the earlier discrimination, amounted to a breach of the implied obligation to maintain trust and confidence.
The ET majority was further satisfied that the Claimant had resigned in response to the earlier pregnancy and maternity discrimination and had not affirmed the breach of the implied term, given that she had resigned shortly after the final straw. The Respondent appealed.
Employment Appeal Tribunal
The EAT concluded that the ET’s decision of discrimination should not stand. The ET had failed to satisfy the necessary burden of proof by not having regard to all the evidence, and/or reached perverse findings in some respects, by failing to demonstrate that it had engaged with the Respondent’s explanation and evidence.
The EAT found that the ET had wrongly focused only on the affirmation and delay issues in relation to the final straw. The ET should have considered whether the earlier acts of discrimination or breaches of contract, which formed part of the repudiatory breach, had been affirmed. If a breach of contract has previously been affirmed, it cannot be later revived due to a final straw.
The EAT explained that the Claimant had the choice to accept the breach and resign at the time of those acts, meaning the breach would not be affirmed. The Claimant therefore affirmed those previous breaches by not acting on them at the time. The Tribunal’s conclusion that the earlier acts could still be relied upon to resign subsequently was therefore perverse.
This case is useful for employers facing constructive dismissal claims who believe the alleged breaches were previously affirmed by an employee. Once faced with a breach, employees have a short timeframe in which to resign to avoid affirming any alleged breaches. This case therefore emphasises the importance that employees need to act quickly in response to any breach of contract. Once alleged breaches have been affirmed they cannot be used in the future to form the basis of a constructive dismissal claim, even in circumstances where a new ‘last straw’ event arises.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.