Background
This case concerns Mrs Helen Kinch’s appeal against the Employment Tribunal’s (ET) decision to strike out her claim of constructive unfair dismissal. Mrs Kinch, formerly employed as a UK Finance Controller, resigned in August 2022 following a refusal of her flexible working request and a comment from HR that she would face “a sticky end” if she did not return to the office. She alleged this amounted to a repudiatory breach of contract.
Following her resignation, the notice period was extended multiple times by mutual agreement, and her employment ended in April 2023. The ET struck out her claim under Rule 37 of the Employment Tribunal Rules on the basis that her extensions of notice had affirmed the contract, leaving no reasonable prospect of success.
Key Issues
1. Strike Out Without Hearing Evidence:
The ET concluded on the papers alone that the claim had no prospect of success. It found Mrs Kinch had extended her notice “for her own benefit”, suggesting this conduct affirmed the employment contract. However, this factual conclusion was disputed and unsupported by the pleadings or contemporaneous documents. The Employment Appeal Tribunal (EAT) found it was an error of law to make this assessment without hearing evidence.
2. Affirmation and Constructive Dismissal:
Affirmation of a contract can defeat a constructive dismissal claim, but whether a contract has been affirmed is a fact-sensitive question. Section 95(1)(c) of the Employment Rights Act allows an employee to resign “with or without notice” in response to a breach. The EAT found that the reasons for the extended notice, and who initiated it, were central to determining whether affirmation occurred—and that required factual inquiry.
3. Errors in Tribunal’s Approach:
- The ET wrongly believed it was undisputed that Mrs Kinch requested the extensions for personal reasons.
- It failed to consider key evidence, including emails showing the extensions were agreed to help the team.
- It confused or overlooked the claimant’s formal response to the strike out application, referencing the wrong document in its reasoning.
Employment Appeal Tribunal (EAT) Decision
The EAT, led by Lord Fairley, held that the ET erred in law by making disputed factual findings without a hearing. The question of affirmation, particularly where notice is extended, cannot be resolved without considering evidence. The EAT emphasised the dangers of conducting a “mini-trial” through a paper-based process.
The strike out judgment was set aside, and the case was remitted to a freshly constituted tribunal to determine the merits of the constructive dismissal claim, including the employer’s affirmation defence.
Significance
This case is a clear warning against premature strike outs in constructive dismissal cases where material facts are in dispute. For trade union representatives, it underscores the importance of ensuring members’ claims are properly heard—especially when the circumstances of resignation, notice, and continued employment are complex.
It also reaffirms that mutually agreed extensions of notice do not automatically mean a worker has accepted or affirmed a breach of contract.
Outcome
The EAT allowed Mrs Kinch’s appeal. The constructive dismissal claim will now proceed to a full hearing before a different tribunal.
