In Pets at Home Ltd v MacKenzie, the 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.
As is well established by case law, for a constructive dismissal claim, an employer needs to commit a repudiatory breach of contract to which an employee accepts and resigns in response to. If an employee does not resign in response to the breach, they are taken to have affirmed the breach.
In MacKenzie, the Claimant was an assistant manager who applied in February 2015 (when she was pregnant) for a promotion. Pets at Home refused to fast-track her into the role and she was unsuccessful in her application. The Claimant then unsuccessfully applied again in January 2016 (with fast-track again not been used), when she was on maternity leave. When, in March 2016, the Claimant found out a colleague (who previously reported into her) had been promoted to the role (albeit he still had to pass a trial period), the Claimant resigned and cited her colleague’s promotion as the final straw.
Overturning the original decision, the EAT confirmed that the ET should not have simply focussed on the last straw, but in relation to her failure to be fast-tracked for the new role in February 2015 and January 2016, it needed to consider if the earlier acts of discrimination or breach of contract had been affirmed. The EAT confirmed that, if affirmed, a repudiatory breach cannot subsequently be revived for a constructive dismissal claim.
The case has been remitted to the same ET to determine whether the Claimant had affirmed the February 2015 or January 2016 breaches.
The 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.