The Claimant, who was paid mainly on commission as a Resort Holiday Sales Advisor at a call centre, was asked to work from home when the first covid lockdown was announced. She was paid in full whilst being part of a new home-working team which dealt with customer issues during the time the resorts were closed. She was also a member of the home-working WhatsApp group. The Claimant was understandably concerned about what she would be paid as a member of the home-working team because her salary had previously been predominantly made up of commission and there would be no sales as the Respondent’s resorts were closed. The Claimant raised her concerns by email and chased when she did not receive a response. The Claimant was then removed from the WhatsApp group without explanation. She raised a grievance and wrote to the Respondent "I reserve all of my rights". 3 months after the start of home-working, the Claimant resigned, asserting a breach of the relationship of trust and confidence. The ET found that the reason for her resignation was her removal from the WhatsApp group and home-working team in March 2020; the breach of contract was the manner in which it happened. She had however affirmed the breach by continuing to accept payment without resigning for three months. The Claimant appealed and the Respondent cross-appealed.

The EAT allowed the appeal. The ET did not consider the fact that the Claimant had written that “I reserve all of my rights”. More significantly, the ET focussed entirely on receipt of payment during a period of delay between the breach and resignation and did not take into account the fact that the Claimant had raised a grievance that had not been completed at the date of her resignation. The EAT ruled that it was vital that the ET take this matter into account when considering affirmation. The cross-appeal was dismissed. The EJ had clearly understood that the asserted breach was the Claimant’s removal from the WhatsApp group, but considered that the removal from the WhatsApp group had to be set in the context of this being done after the Claimant had raised genuine and serious concerns about her remuneration if she joined the home-working team and she was removed from the WhatsApp group without any consultation or explanation. The EJ was entitled to take this context into account in deciding whether the breach was established.