The Claimant resigned with notice in response to what she claimed was a repudiatory breach by the Respondent of her contract of employment. She subsequently presented an ET1 in which she complained of constructive unfair dismissal. An application by the Respondent under rule 37 of the Employment Tribunals Rules of Procedure 2013 was made, on the narrow basis that the Claimant affirmed her contract of employment by continuing to work as the Respondent’s employee for eight months after she tendered her resignation. That was seven months longer than required under her contractual notice period. By affirming the continued existence of the contract, the Claimant waived her right to bring a claim for constructive dismissal. The ET struck out her claim on the basis that it had no reasonable prospect of success. The judge concluded on the papers that there was no prospect of the Claimant establishing that a series of agreed extensions of her notice period following her resignation did not have the effect of affirming the contract. The Claimant submitted inter alia that the complaint should not have been struck out without a hearing of evidence about the precise circumstances in which the notice period was extended.

The EAT allowed the appeal. A key part of the judge’s reasoning was his understanding that it was an undisputed fact that the Claimant had repeatedly asked for extensions of her notice period for her own benefit. That was wrong. There was nothing in the parties’ pleadings, in their written submissions about the strike out application, or in the contemporaneous documents to support such a conclusion. The particular facts and circumstances in which extensions of the notice period were agreed were, however, important factors in determining whether or not the contract had been affirmed. It was an error of law to conclude that the issue of affirmation could be resolved without hearing evidence. It was thus an error of law to strike out the complaint under rule 37.