The Claimant was in dispute with the Respondent over sick pay. She was helped by her trade union representative, who attempted to negotiate payment of full sick pay. As late as 16 February 2021, the practice manager informed the Claimant's trade union adviser that the claimant was owed slightly over £9,000 in sick pay. It was only on 26 March 2021 that the senior partner of the Respondents' practice wrote informing the Claimant that she would not be paid sick pay. The Claimant resigned on 6 April 2021 and claimed constructive dismissal at the ET. The ET concluded that this conduct amounted to behaviour that suggested clearly that the Claimant was not treating her contract with the Respondents as being at an end owing to the non-payment of sick pay. The claim for constructive dismissal arising out of breach of an express term failed. The Claimant appealed.

The EAT allowed the appeal. The ET referred to the long delay in resigning between September 2020, when the Claimant first knew that she was not going to be paid more sick pay, and April 2021 when she resigned. That analysis failed to take into account its earlier specific finding that during the period until 26 March 2021 there were ongoing discussions between the parties in which the claimant was seeking to persuade the Respondents to pay contractual sick pay and that, as late as 16 February 2021, the Claimant had been informed by the Respondents' practice manager that payroll had advised that she was owed over £9,000 in sick pay. That was a highly relevant factor that the ET conspicuously failed to take into account in finding affirmation.