EAT confirms that delay in resigning did not amount to affirmation

Background

In Dr Barry v Upper Thames Medical Group & Ors, the claimant, a GP with long NHS service, began working for the respondent GP partnership in 2018. She later experienced significant periods of absence due to ill health. Although disagreements arose about her attendance and capability management, the Tribunal found no breach of contract in the employer’s approach to those earlier issues.

The dispute centred on the withdrawal of contractual sick pay from 28 August 2020. The claimant’s trade union representative raised the issue promptly, and the parties exchanged correspondence over several months while the claimant remained off work. By late December 2020 she was fit to return, but she chose not to do so until the sick pay issue had been resolved.

On 16 February 2021 the practice manager indicated that payroll had calculated her sick pay entitlement at over £9,000. However, on 26 March 2021 the senior partner confirmed that no payment would be made. The claimant resigned on 6 April 2021 and brought a constructive unfair dismissal claim. The Tribunal accepted that the withdrawal of sick pay was a repudiatory breach but held that she had affirmed the contract by delaying her resignation.

EAT’s decision

The EAT held that the Tribunal had erred in law and substituted a finding of unfair dismissal. Judge Tayler stressed that affirmation depends on what the employee communicates by words or conduct, not simply on the passage of time. Delay alone does not amount to affirmation, particularly where the employee is continuing to press for a remedy, is absent due to ill health, or is not performing any work.

The Tribunal had overlooked several significant factors pointing away from affirmation, including the ongoing dispute, the employer’s statement in February 2021 that sick pay might be owed, and its own finding that the claimant was not prepared to return to work until the issue was resolved. The involvement of a union representative was also not evidence of affirmation. Taken together, the only permissible conclusion was that the claimant had not affirmed the contract.

Learning points for employers

This judgment highlights the need to handle contractual disputes, particularly around sick pay, with clarity and care. Employers should not assume that an employee has affirmed a breach simply because they take time to resign, especially where they are unwell or engaged in active discussions about resolving the issue. Communications during negotiations must be precise, as mixed messages can significantly affect the legal analysis. Employers should also recognise that employees may legitimately reserve their position while seeking a remedy, and that this will not necessarily undermine a later constructive dismissal claim.

For more information or advice, please contact Alastair Fatemi in our Employment team.