Not necessarily, held the EAT in Colomar Mari v Reuters.
The Claimant was a systems support analyst. She resigned after 19 months after going off sick with stress, anxiety and depression. An employment tribunal had rejected the Claimant's assertion that she had been too ill to resign sooner and dismissed the complaint on the basis of affirmation.
The EAT dismissed the appeal, the employment tribunal had correctly applied the law to the facts, with affirmation being a mixed question of law and fact, the decision was not perverse.
Whilst the EAT noted 'What can be safely said is that an innocent employee faced with a repudiatory breach is not to be taken to have affirmed the contract merely by continuing to draw sick pay for a limited period whilst protesting about the position' the judgment stood on the facts found by the employment tribunal.
The EAT noted a previous authority, Hadji v St Luke's Plymouth, including the principle that an employment tribunal may find affirmation if an employee calls on the employer to perform its obligations under the contract. The employment tribunal found that the Claimant had done so, by accepting contractual sick pay, and requesting PHI amongst other factors.
The employment tribunal dealt with affirmation as a preliminary issue, without making findings of fact, but assuming that the Claimant had shown a fundamental breach of contract. The EAT indicated that this should be regarded as an exceptional course, in nearly all cases which go to a full hearing, it is better to determine the issues.