EAT Clarifies That Delay Alone Does Not Constitute Affirmation

EAT finds that a mere delay between the alleged breach of the employer and the resignation of the employee does not automatically constitute affirmation.
In the case of Barry v Upper Thames Medical Group and others 2025 EAT 146, the EAT found that an employment tribunal had erred in finding that a GP had affirmed her contract of employment before resigning and claiming constructive dismissal.

Following a capability meeting in August 2020 to discuss her sickness absence, the GP suffered a relapse of her autoimmune condition and started an extended period of absence.

In September 2020, her employer told her that no further sick pay would be paid. The GP claimed that this was a fundamental breach of her contract of employment and of the implied term of trust and confidence. Following negotiations between the GP (assisted by her trade union representative) and the medical practice, the practice confirmed on 26 March 2021 that the GP would not be paid sick pay. The GP resigned on 6 April 2021.

An employment tribunal found that the GP had affirmed her contract of employment before resigning because of:

• The gap between the alleged breach and the resignation. In other words, although the GP knew in in September 2020 that she was not going to be paid any more sick pay, she didn’t resign until April 2021.

• The GP’s statement that she was “ready and wanted to return to work” on 26 December 2020, if the sick pay dispute could be resolved.

The EAT found that the tribunal had failed to adequately consider the negotiations in the run up to the resignation when reaching its conclusion. In particular:

• The practice manager had told the union representative in February 2021 that the GP was owed over £9,000 in sick pay. The EAT considered that this gave the GP some hope that the dispute could be resolved. This, in the EAT’s view, indicated that the GP was trying to resolve the breach, not to affirm the contract.

• The tribunal’s finding that the GP was ready to return work as at December 2020 was inconsistent with its earlier finding that she was not prepared to return to work unless she was paid the sick pay to which she was entitled.

• The union’s efforts to secure sick pay demonstrated the GP’s intention not to affirm the contract but to have the breach remedied.

• The EAT emphasised that mere delay does not automatically constitute affirmation.

The GP had therefore not affirmed her contract, but had been constructively dismissed.

When defending claims involving constructive dismissal, businesses should therefore not seek to solely rely on the employee’s delay in resigning. Although this could be evidence of implied affirmation, the tribunals will closely scrutinise the employee’s actions between the breach and the resignation, and the purpose behind those actions, when seeking to determine whether the contract had indeed been affirmed.