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The Employment Appeal Tribunal's recent decision in the case of Dr Kate Barry v Upper Thames Medical Group & Ors [2025] EAT 146 offers a useful reminder for employers navigating the terrain of contractual breaches.
Constructive unfair dismissal
Constructive unfair dismissal occurs when an employee resigns in response to their employer's conduct, but the resignation is treated in law as a dismissal. The employer's conduct must be such it that amounts to a repudiatory breach – a breach going to the root of the contract.
Understanding affirmation in the context of employment contracts
The principle of affirmation was central to Dr Barry's case. Where an employee claims that their employer has committed a repudiatory breach of the employment contract, the employee may forfeit the right to later accept the breach and treat themselves as constructively dismissed if they affirm the contract. Affirmation occurs when the employee keeps the contract of employment alive, for example by continuing to work, rather than treating it as having been terminated and so resigning.
In Dr Barry's case, the Employment Appeal Tribunal confirmed that a mere delay in resigning does not amount to affirmation. Whilst Dr Barry was initially told in September 2020 that she would not be paid sick pay (in breach of her employment contract), Dr Barry did not resign until April 2021, six months later. The Employment Appeal Tribunal found that Dr Barry, following the breach of her employment contract, not working, not being paid and actively disputing the cessation of her sick pay through her union representative all pointed against her affirming her employment contract.
Key takeaways for employers
The judgment is a reminder for employers that careful handling of contractual disputes and an understanding of affirmation are essential. Employers should have in mind the following:
- A delay in resigning in itself does not affirm an employment contract and so defeat a constructive dismissal claim. Instead, consideration should be given to the employee's actions and communications between the breach and the resignation when determining whether the employee affirmed the breach leaving them unable to successfully claim constructive dismissal.
- Employees may continue working while "reserving their rights", indicating they still consider the contract breached.
- Engaging constructively with employees when issues over contractual rights arise and document all communications.
- Seeking legal advice promptly to minimise the risk of constructive dismissal claims.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
