The tribunal found that the employers in Hadji v St Luke's Plymouth had acted in breach of contract in a way that entitled the claimant to resign. The sequence of events was:

  • 15 February: the last breach of contract by the employer (when the claimant was off work with stress)
  • 23 March: a meeting at which the claimant was given three options – to return to her existing role, to consider vacancies within the organisation or to resign
  • 26 May: claimant emailed to say that she was starting a stress control course which she hoped would make a difference and asking to be sent details of internal vacancies
  • 8 June: claimant changed her mind and resigned.

The employment tribunal found that the claimant had specifically "affirmed the contract of employment" on 26 May, thereby losing the right to treat herself as dismissed. And in any event, the four month delay between the last breach of contract and her resignation was too long. The EAT agreed, confirming that the rules on affirming contracts are fact sensitive and an issue for the tribunal. The fact that the employee was not at work and not receiving sick pay did not mean that she could not be taken to have affirmed the contract.