The Claimant’s employment with the Respondent ended by resignation. His case was that he had been unfairly constructively dismissed, the Respondent having conducted itself in a manner that amounted to a cumulative breach of the implied duty of trust and confidence. The ET determined what was the last incident that could be relied upon as a last straw for these purposes. That was on 29 June 2020. The ET did not determine whether the Respondent was at that point in fundamental breach. The Claimant resigned by giving notice on 28 September 2020. The ET concluded that by that point he had affirmed the contract so he was not in any event constructively dismissed and his unfair dismissal claim therefore failed. The Claimant appealed. The appeal did not challenge the decision on the date of the last event that the Claimant could rely upon as a last straw - the challenge was solely to the decision on affirmation.

The EAT allowed the appeal. Having regard to the facts found, and the matters relied upon by the Claimant as relevant to the question of whether there had been affirmation, the ET erred in its approach to affirmation. The matter was remitted to the same ET for fresh consideration of that question, in light of the facts found, and, as necessary, the further issues to which the complaint gave rise.